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There is fundamental difference between decentralisation or devolution of powers and federalism

By Jacob K. Lupai

July 17, 2014 (SSNA) -- The debate on federalism for South Sudan has produced some mixed feelings and reactions. Some people are totally opposed to it, claiming that the system of governance in South Sudan is already federalism. They argue that the present decentralization or devolution of powers is already a federal system of government in South Sudan. For others federalism is perceived as dangerous to national unity. Furthermore some people are very suspicious that the proponents of federalism have a hidden agenda. In their paranoia the opponents of federalism relentlessly assume that once federalism is adopted they will be thrown out of the states of proponents of federalism.

For obvious reasons the vocal proponents of federalism are people of Equatoria. The opponents of federalism reason that when people of Equatoria call for federalism it is kokora. The opponents are very fearful that once federalism is adopted they will be unceremoniously evicted from Equatoria. The paranoia of the opponents of federalism even caused restriction of open debate. There was intimidation for any mention of a federal system of government. The opponents of federalism wanted the mouths of proponents shut. This was despite the government’s clarification on censor on federalism debate through a letter by the Minister of Information and Broadcasting to newspaper editors. However, newspapers were still being confiscated.

For example, the letter of the Minister of Information and Broadcasting dated 2nd July 2014 in part outlined that, “It is the policy of the Government to encourage the people of South Sudan to participate in debates on topics or agendas which are of National interest among others, the debate on federalism”. Despite all this The Citizen was still confiscated on the 6th July well after the Minister’s letter. This seems to show clearly that deeper below the surface the debate on federalism was indeed hated. One can only speculate as to why there was such a poor coordination between government institutions in observing government policy.

The debate on federalism turned ugly when a soldier became undisciplined and shot dead a civilian in Maridi County in Western Equatoria State. Apparently the soldier was opposed to federalism and as with opponents of federalism, must have assumed they were the target for eviction from Equatoria. It is a pity that both illiterate and literate opponents of federalism have no any other positive perception except the paranoia of terribly missing all that is good of land of Equatoria. They do not give themselves a minute to think of anything positive that federalism can offer. This type obstinacy is a problem because people do not stand back and be a little bit reasonable in looking at the wider picture.

Opponents of federalism live in deep rooted suspicion and will never appreciate an inch of federalism. This becomes worrying when people are being murdered in cold blood such as the murder in Maridi of an innocent civilian simply for advocating federalism. However, there will come a time when enough will be enough that the murderers will be accountable for their heinous crimes. Killing people with impunity for expressing a contrary view is not the way to build national unity when others have the license to kill while the victims have no justice.

Coming back to centralization or devolution of powers and federalism which are considered to differ fundamentally, it is appropriate to look at them separately.

Decentralization or devolution of powers

Decntralisation or devolution can simply be defined as the transfer of part of the powers of the central government to regional or state authorities and it is in response to demands for diversity. In general decentralization or devolution is a response to the problems of centralized systems. It is seen as a solution to problems like economic decline, government inability to fund services and the demands of minorities for greater say in local governance. Decentralization or devolution of powers is linked to concepts of participation in decision-making, democracy, equality and liberty from high authority.

The processes by which entities move to decentralized state vary. They can be initiated from the central government in a top-down approach. Top-down decentralization may be a political gimmick while bottom-up decentralization initiated by individuals or states may be opposed as is the case with federalism we are now debating. At any rate whether it is top-down or bottom-up decentralization or devolution, it may not be constitutionally binding. Such decentralization or devolution may depend on the whims of the central government either to implement or ignore it.

Can anybody say for certain that the decentralization in the Transitional Constitution of the Republic of South Sudan, 2011 is being implemented as expected of a decentralized system? If the decentralization in the Transitional Constitution of the Republic of South Sudan, 2011 were being implemented as expected, there wouldn’t have been a loud demand for a federal system. The level of demand for federalism seems to correlate to the level of regression to centralized system of government in South Sudan.

Federalism

Federalism is a political concept used to describe a system of government in which sovereignty is constitutionally divided between a central governing authority and constituent political units such as the states in South Sudan. In comparing decentralization or devolution with federalism it can be observed that there is a fundamental difference. Decentralisation is devolution of powers by the central authority to lower levels. The central authority may withdraw the devolved powers at will. In contrast, in federalism powers are constitutionally divided. There is a covenant between the central authority and the state in the division of powers in federalism. This is the fundamental difference between decentralization or devolution and federalism.  

Unlike in devolution of powers, in a federal system the central authority cannot easily withdraw powers from the state without the ruling of a competent constitutional court. So federalism is more just and fairer than decentralization or devolution because the aggrieved party has a chance to challenge any infringement on their powers through the constitutional court for justice. There is no any other fairer system than that justice must be seen to have been done.

Development under federalism

The high level demand of Equatoria for federalism is precisely to accelerate development but not to evict others as the alarmists would like to claim. It can be asserted with confidence that it is not to throw others out of Equatoria. Equatoria is an integral part of South Sudan. So it is mind boggling for people to fear the adoption of federalism as tantamount to Equatoria being a no go area for others. What is very clear, though, is that people with hegemonic tendencies fear federalism the most because they want to cling tom be rulers at any cost. However, adoption of federalism wouldn’t have been a big issue if it were seen from a developmental angle.

Right now federalism is seen from an ethnic angle and so it is perceived as targeting other people of different ethnic group. In fact the opponents of federalism are thinking they are under attack. This is of course false and baseless. The centralized system is favored simply to maintain the status quo. The people of Equatoria would have none of this and so the demand for federalism would always be there. Federalism is seen as a means to accelerate development.

Dr John Apuruot Akec, the Vice Chancellor of Juba University, in his article Decentralisation or devolution and federalism are faces of the same coin, which appeared in the opinion column of The Citizen and quoting my article in Juba Monitor of June 12, 2014, said I miss the point about the yardstick by which the strength of a federalist system of governance is measured. Dr Akec added I should have acknowledged that for every 10 South Sudanese, 4 are Dinka and that in the 10 states of South Sudan, 7 states have Dinka population.

Another interesting point Dr Akec raised is that 85 per cent of South Sudan government revenue is currently spent in Central Equatoria State and that Central Equatoria State continues to lead the whole country in most development indicators. I may say I have no quarrel with the assertion made but to make my own observation.

I agree with Dr Akec that in the 10 states of South Sudan, 7 states have Dinka population. However, my observation is that in some of the 7 states, for example in Jonglei, Upper Nile, Unity and in Western Bahr el Ghazal, the Dinka are a tiny minority and could hardly be a dominant force to reckon with. Nevertheless, they are the overwhelming majority only in Lakes, Warrap and Northern Bahr el Ghazal. So the Dinka are mostly concentrated in only 3 states of South Sudan. Giving an impression of Dinka dominance in 7 out of 10 states for numerical superiority should not be used to justify domination which is any way irrelevant in terms of quality.    

 The claim that 85 per cent of South Sudan government revenue is currently spent in Central Equatoria State for its development is disputable. Dr Akec has not specified clearly budget line items from the revenue corresponding to development activities carried out in Central Equatoria State that amounted to 85 per cent of the revenue. The bulk of the alleged 85 per cent spent in Central Equatoria State if any may actually be for salaries and. the security and law enforcement sector.  

A very insignificant percentage of the alleged 85 per cent revenue may go for some minor development but not for the sake of development of Central Equatoria State as it is home to citizens from the other states. When asked whether the national government was really spending 85 per cent of its budget for the development of Central Equatoria State, the respondent said that was laughable. He said if that were the case why then should people of Equatoria demand federalism. The respondent concluded by saying it was a white lie and that high rising buildings in Juba is the result of individual efforts but not of any government budgetary intervention. 

Dr Akec may need to visit the residential areas in and around Juba including the city centre, to travel on Juba-Yei main road and to establish what development projects in Central Equatoria State are being financed by the central government. This is in order for him to be realistic about claiming that 85 per cent of the government revenue is spent on development of Central Equatoria State. This is to avoid making misleading assumption. The development in Central Equatoria State is because the people here are industrious. They make the use of Constitutional Development Fund (CDF) to build schools and health centers, and improve existing hospitals and roads for access to agricultural production areas. When others do not use the CDF and their budgets as intended it is not the problem of Central Equatoria State. The government of Central Equatoria State is also keen on development as shown by Central Equatoria State leading in most economic indicators.  

National unity of South Sudan

It is always quoted that there are 64 ethnic groups in South Sudan. However, my little research seems to show that there are more than 64 ethnic groups. This suggests that more research needs to be carried out. People should also share information about ethnicity in South Sudan so that they are knowledgeable about their history.

Each and every South Sudanese yearns for unity because it is strength. When united people can move mountains but divided people are weaklings. The problem is how to promote national unity. There may be many theories. One theory is that development can bring national unity. The question is how? Well equitable power and wealth sharing can go a long way to promote national unity. With the diversities in South Sudan the only known system of government that will accelerate development hence promotion of national unity is a federal system.

We have seen how people are in despair when service delivery is poor and when development is accelerating at chameleon speed. A federal system will accelerate development at the speed of a rabbit. The economy of State of California is the 8th largest in the world if the states of the United States were compared with other countries. What is the secret of such a gigantic stride in development of a state within a country? The answer may not be that so simple. However, like some states in South Sudan, California is endowed with abundant resources and besides, it does not need to depend on decisions and funds from the federal government in Washington, DC for its development strategies and plans.

California’s success story in development makes federalism very attractive as powers are constitutionally divided that the federal government has no business to interfere with California’s development plan. For the states of South Sudan with their abundant and untapped resources, a federal system will tremendously accelerate development in the states with the added effect of promoting sustainable national unity as confidence increases with development. South Sudanese must be informed that the struggle to maintain the status quo is a liability to national unity.

Conclusion

The One Nation, One People sloganeering is misleading and a mockery. How on earth can one people have no mercy on each other? How can people hate each other and slaughter each other and yet call themselves one people? The correct slogan should have been One Nation, One Destiny.

It is the oneness in destiny that can pull people together. This precisely explains how people of South Sudan with their different ethnic groups had fought jointly against Arab domination and marginalization because their destiny was one. Being of one destiny and regardless of whether one was a Zande or a Murle, Southerners had fought and died together in trenches defending their destiny.

It must be understood, though, that it is not only domination and marginalization that may pull people together as of one destiny. Challenges of development and nation building for a better future for all should also pull people together for strength in order to eradicate poverty. It is poverty that may be tearing people apart.

In conclusion, federalism is the most appropriate and peaceful means of accelerating development for a higher standard of living while a centralized system serves nothing but only hegemonic tendencies of others to terrorise, oppress and rule.

The author can be reached at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

We must be sober-minded about federalism

By Philips Al-Ghai

July 15, 2014 (SSNA) -- While the country lies apparently on the verge of falling apart, recent weeks have seen the infiltration of calls for federalism into the national agenda.

 Typically, like any other political debate in S. Sudan, cheerleaders have already spiced it with sentiments that suggest dishonesty, contempt, and mistrust as they attempt to lure their flocks into embracing their take.  Phrases like  “rebel agenda”, “agenda of Equatorians”, “saving Equatoria from Dinkocrats”, “to get rid of Dinka” etc are currently floating in the mouths of many.  

Nevertheless, it is noteworthy that 1) Federalism is a national agenda and deserves opinions of S. Sudanese from all walks of life. Those harboring cognitive allergies to this topic might need to see their psychiatrists. 2) It should not be used as a tool to hold the current government for disguised political ransom. It carries more value for all S. Sudanese than just individual interests.

Although I am a strong supporter of federalism, a system that would mark the next politico-economic step towards the prosperous S. Sudan in my definition, recent calls for federalism leave a lot to be desired.  

Let’s be a bit rational about this. It is an overhaul of the existing system, a change easier said than done in reality.

Establishing a viable federal system would need careful study of failures of the current political system –which are countless of course, identifying common pathologies that need to be remedied by the federal governments, and ensuring that better alternatives are at hand. Otherwise, recycling the present selfish, abusive, aliens-to-the-rule-of-law, unambitious, ‘Oyee’ stooges in the national parliament, as crude as they are, for instance, would spell a whole different disaster for ordinary S. Sudanese who are certainly in dire need of change. It is in the hands of these same individuals that the nation is rocked by conflict, still nursing unspeakable poverty and poor delivery of services. What would federalism bring if it happens tomorrow? Just as the conversion of units doesn’t change the quantity of a substance, giving these lots new micro-niches in the name of federalism won’t make them any different at the look of things.

Furthermore, the federal system, whichever form it will be, would require prior evaluation of the national budget, current & future state of the economy, and terms of sharing resources, just to name a few. Yet none of the above is possible with the current state of affairs.  So, how is federalism possible without any of these? Or are they not necessary altogether? These, I feel, cast serious doubts on sincerity in the voices calling for federalism now.

Although it is a commendable agenda, federalism at this point is utterly misplaced and mistimed. An unrealistic, disguised maneuver of opportunists trying to nurture safer foraging nooks for themselves, it seems. A resolute action to taming the reigning bloody thieves would have laid concrete foundation for the revolution of people’s power that can be advanced into federalism.

Whatever the motives, we must not lose sight of the future. Federalism promises long-term solutions to most of our problems. I believe. But it must be given direction. It must be geared towards salvaging S. Sudanese from the rule of elites. A slight mistake in crafting it, which is likely to happen if we choose to cloth the elites with federalism and shuffle them around, is bound to break S. Sudan into pieces that would be hard to assemble.

We must approach it with more rationale than taking it at face value!

Philips Al-Ghai is a proud S. Sudanese and can be reached at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or on Twitter @ Al_Ghai211.

Proposed Federal system for future South Sudan: Let us serialize it (part 4)

By Sindani Sebit

Part 4

July 14, 2014 (SSNA) -- The Part 4 of these series focuses essentially on the proposed judicial system in a Federal Republic of South Sudan. It outlines the basic aim of the judicial system, its composition and independence, the structures at the Federal and Federal State levels of the country; and the role of the Judicial Services Commission promoting the independence of the judiciary, facilitating the accountability and transparency of the entire judicial system. The independence of the judicial system is crucial and paramount if the country is to uphold and protect the rights and fundamental freedoms of its citizens, ensure accountability, justice, equality and equity for all people regardless of colour, creed, tribe, ethnicity, religion and sex.

Therefore the aim of the judicial system is therefore to ensure that nobody is above the law and everybody is accountable for his/her actions according to the Federal Constitution and also to promote fair judgment, equal treatment before the law and protect all rights of the citizens regardless of their standing in the society.

The purpose of this article is therefore to provide the people of South Sudan with the basic knowledge of the kind of judicial system that will protect them under a federal system of governance as opposed to the current subjected judicial system in South Sudan. It is hoped that constructive feedback and suggestions will be generated.

Judiciary

Fair judicial system is important for any citizen of a country to enjoy his/her liberties and rights. Judicial system that is independent and based on transparency and accountability guarantees equality and equity, it promotes harmony, unity and togetherness because nobody will be considered to be above the low. It creates and ensures confidence among the citizenry because of the grounded belief that they are protected, their property is protected and that none of them will be subjugated, oppressed and denied his/her right to live, enjoy, marry, acquire and own property.

Therefore, the authority of the Judiciary in a Federal Republic of South Sudan shall emanate from the people and shall be vested in and exercised by courts and tribunals as stipulated by the Federal Constitution. The courts and tribunals should be grounded by the fact that justice shall be done to all regardless of status of a person concern and justice shall not be delayed. Courts shall endeavour to promote alternative forms of dispute resolution such as reconciliation, mediation, arbitration and traditional dispute resolution mechanisms and shall ensure that justice shall be administered without regard to procedural technicalities and that purpose and principles of the constitution are protected and promoted. On the other hand, the courts shall ensure traditional dispute resolution mechanisms shall not be used to contravene any bill of rights, promote acts that are contrary to justice or morality and not result in outcomes that are repugnant to justice and morality and that the traditional dispute resolution mechanisms shall not be inconsistent to the constitution or written law of the country.

Independency of Judiciary

The Judiciary in Federal Republic of South Sudan will not be subjected to any authority other than the constitution and law of the Republic. It cannot be subject to control or direction of any person or authority and the office of the Judge of the Federal Superior court shall not be abolished as long as there is subordinate office holder. All judge salaries and benefits shall be charged to a consolidated fund and members of Judiciary shall not be subjected to any action or suit resulting from anything done or omitted in good faith in the lawful performance of a judicial function. This is meant to guarantee the independence of the judiciary. It means that the judiciary shall be independent of the executive and parliament. It will have its budget and tenure of office.

Composition of Judiciary

The judiciary proposed here will include judges of Federal Supreme Court, Federal Court of Appeal, Federal State High Court Judges, Magistrates, Other judicial officers and Staff of the judiciary. The offices of the judiciary shall comprise the Chief justice as the Head of the judiciary, the Deputy Chief justice as Deputy Head to the judiciary, Chief registrar as Chief Administrator of and accounting officer to the judiciary and the Judicial Service Commission. The role and functions of the Judicial Service Commission will be outlined later in this article.

Structure of the Courts

The courts in the federal Republic of South Sudan shall be structured as follows: 1) Superior courts. The superior courts include the Federal Supreme Court, Federal court of Appeal and state high courts. 2) Subordinate courts that include the magistrate courts and court martial courts. The courts will be distributed according to the two levels of administration. Therefore at the Federal level, the following courts shall be established:

1. Federal Supreme Court
2. Federal Court of Appeal
3. Any other court prescribed by the Federal constitution such as commerce and trade laws, employment and labour laws at Federal level.

Meanwhile the following courts shall be established at State level of governance:

1. High Court
2. Magistrate court
3. Martial courts
4. Any other courts that are prescribed by state constitution such as commercial courts, employment and labour laws, environmental and land laws, etc

Federal Supreme Court

The Federal Supreme Court shall be the highest Federal court in the country and shall be headed by the Chief Justice deputized by the Deputy Chief Justice. Its composition will include 5 judges as will be determined by the Federal Constitution. This court is charged with appellate jurisdiction to hear and determine appeals from:

1. Court of appeal
2. Any other court or any matter of public importance or interest

Federal Court of Appeal

This is the second highest court in the country and shall comprise of 18 judges as prescribed by the Federal Constitution. The constitution shall ensure that one judge is appointed to the court from each of the proposed 18 Federal states. If the number of Federal States is more or less than 18, the number of judges should also be varied to ensure that each state is represented by one judge in this court. This is to create equal representation and guarantee fair administration of justice in the country.

The court shall be headed by the President of Federal Court of Appeal elected by its members in their first sitting. The principal role of this court is to hear and determine cases from:

1. Referred from State High courts
2. Questions arising from interpretation of Federal constitution including electoral cases
3. Cases arising from interstate conflicts
4. Any other court or tribunal prescribed by act of Federal parliament

State Courts

The state courts include the high courts, magistrate courts, chiefs’ courts and any other form of traditional courts.

High Court

This court consists of number of judges as prescribed by the state constitution. It shall be headed by Principal Judge elected by its members in its first sitting. Its fundamental functions shall be to hear and determine:

1. Unlimited jurisdictions in criminal or civil matters
2. Issues related to the bill of rights and fundamental freedoms
3. Appeals from decisions from tribunals and magistrate courts
4. Questions arising from interpretation of state constitution
5. Whether any law is consistent with or in contravention of the state constitution

Magistrate Courts

The state parliament shall enact legislation conferring jurisdiction, functions and powers on these courts

Appointment of Chief Justice, Deputy Chief Justices and all judges

The posts of Chief justice, his/her Deputy and Judges of the State High Courts are constitutional posts and therefore subject to approval by the Federal Parliament in case of the Chief Justice and his Deputy and Federal State parliament in case of Judges of the State High courts. Thus the Chief Justice and his/her Deputy shall be recommended to the President/Prime Minister by the Judicial Service Commission, approved by the Federal Parliament and then appointed by the President/Prime Minister. No person shall be appointed by the president to these posts without the recommendation of the Judicial Service Commission and approval of the Federal Parliament. Any person appointed without following this due process shall be deemed to have been appointed unconstitutionally and therefore shall not be permitted to assume these offices.

Similarly the same procedure shall be followed in the appointment of Judges of the Federal State High Courts with the exception that the candidates will be recommended to the State Governor by the State Branch of the Judicial Service Commission and will be approved by the State Parliament before appointment by the State Governors. In this case the Federal President/Prime Minister has no powers to appoint any Federal State High Court Judge. Any attempt to do so shall be deemed unconstitutional and such appointee shall not be permitted to assume the office of judge in that state. This is to protect against corruption, nepotism, favouritism, equality and equal opportunity.

Therefore any person who intends to be appointed to any position in the judiciary shall present an application to the Judicial Service Commission either at federal or state levels depending on the position and the Judicial Service Commission shall ensure competitiveness and transparency in processing the application in accordance to the rules and regulations of employment as stipulated in the Judicial Service Commission act.

Qualification of the judges

In case of Chief Justice, Deputy Chief Justice and Judges of Federal Supreme Court, the candidate must have a degree from recognized university, has high moral character, integrity and impartiality and has experience of at least 10-15 years as member of superior court judge or distinguished academia, judicial officer or such experience in other relevant legal field. This is to ensure competency, integrity and respect.

For Judges of Federal court of appeal, the candidate should have at least a degree from recognized university, experience of at least 7-10 years as member of superior court judge or distinguished academia, judicial officer or such experience in other relevant legal field while for Judges of High court, the candidate should have at least a degree from recognized university and has experience of at least 7-10 years as member of superior court judge or distinguished academia, judicial officer or such experience in other relevant legal field.

Tenure of office of the Chief Justice and other Judges

In order to ensure that the Chief Justice and other Judges have confidence in their work and not to be intimidated by the powers that be, these judicial officers shall have tenure of offices which shall be prescribed by law according to retirement age or maximum tenure period of 10 years.

Removal judicial officers from Office

Judicial Officers may be removed from the office only on the grounds of:

1. Inability to perform the functions due to mental or physical injury
2. Breach of a code of conduct
3. Bankruptcy
4. Incompetence
5. Gross misconduct

The process of removal of judge shall be initiated by the Judicial Service Commission in accordance with rules and procedures prescribed in the act of Judicial Services Commission. This is intended to protect the judicial officers from undue interference by the executive and to ensure they perform their work independently without any pressure from anybody.

Judicial Service Commission (JSC)

This body shall be established so as to ensure the independence ofjudiciary system. The functions of JSC shall be to:

1. Promote and facilitate the independence and accountability of the judiciary
2. Ensure efficient, effective and transparent administration of justices
3. Recommend to the President/Prime minister persons to be appointed as judges
4. Review and make recommendations on the condition of service for:
  • Judges and judicial officers
  • Staff of the judiciary
5. Investigate and remove or dismiss registrars, magistrates and other judicial officers and staff
6. Ensure there is continuous education for judges and judicial officers
7. Advise the Federal and state governments on improvement of efficiency of the administration of justice

The JSC shall be guided in its work by competitive and transparent process of appointment of judiciary, equality, fairness, justice and promotion of gender equity. The JSC shall be composed of the following officers:

1. Chief Justice as the chairperson of the JSC
2. One federal supreme court judge elected by supreme court judges
3. One Federal court of appeal judge elected by the judges of federal court of appeal
4. One high court judge and one magistrate, elected by members of association of judges and magistrates
5. Attorney general
6. Two advocates elected by the professional association
7. One representative nominated by the public service commission
8. Chief registrar of the judiciary; as secretary to the JSC
9. Three public representative appointed by the prime minister subject to approval by the Federal Parliament
10. Out of the 13 members at 30% must women

The varied composition here is aimed at creating fair representation, pulling together varied opinions, democratic participation and ensuring accountability and transparency. Tenure of the members JSC should be 5 years except for the Attorney General and Chief of Staff.

In conclusion, the aim of setting up such elaborate judicial system is to bring justice and equality to the country. It is to protect the civil rights and freedoms through independent judicial system and ensure equal participation in the decision process of administration of justice. In addition, the system must be judged to be transparent, accountable and responsive to the people. Furthermore, this is a deliberate attempt to remove corruption, nepotism, favouritism and preference that can work against the desire to have just system in South Sudan. Finally it is a deliberate course to ensure that the judicial system cannot not be subjugated, interfered with and made to be an instrument of oppression, subjugation and denial of fundamental freedoms and rights.

Article 5 of these series will focus mainly on the sources of financial resources for both the Federal Government and Federal states and how the federal resources can be distributed between the federal government and states. It will further illustrate how state resources can be distributed within the states. It will also outline the role of the body that will be responsible for financial resources distribution at the three levels of government.

The author can be reached at This e-mail address is being protected from spambots. You need JavaScript enabled to view it

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