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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

Hon. Both Diu’s Legacy Hijacked

By Peter Gai Manyuon

July 13, 2014 (SSNA) -- The idea of “Federalism” in South Sudan does not emanate from the SPLM-in Opposition nor does it stem from Equatorians (as claimed)but it was first proposed long time ago by some prominent South Sudanese politicians who were by then in parliament in Khartoum. These politicians got fed up with the system in Khartoum and proposed that they needed federal states (they wanted to govern and manage their people and resources by themselves). Their call for federal states was never accepted by Khartoum. This subsequently resulted to Hon. Both Diu saying “refuse it but we will rebel against this to have our own autonomy”

Though it is popularly wanted by the people of South Sudan, however, the SPLM-in Opposition and Equatorians should not use it as their hard-earned agenda without acknowledging the producer, Hon. Both Diu. This is a real plagiarism (stealing of Gatdiu’s patents).

Honorable Both Diu was also the one who advocated for self-determination of the people of South Sudan. Dr Machar and Dr Lam Akol also advocated for it after realizing the goodness of self-determination, likewise to Federalism but they were not the ones behind the program to adopt the system. Absolutely people like Dr Machar and Dr Akol should be appreciated because they vigorously continued the flight for self-determination and implemented it through advocacy but for the case of Federalism; all appreciations should go to Hon. Both Diu even though he is not alive. There is no short cut in the history; this is the time of documenting what is real because we don’t want others to take other people’s initiatives.

Most of the South Sudanese globally and in South Sudan as well have misinterpreted the concept for Federalism. Most people have taken it as personal/tribal agenda which I think might not be the case. To the way I have viewed the issue, it is something very unique that just needs good advocacy and more enlightenment in order for the illiterate people to understand the pros and cons of the federalism in South Sudanese context. Unless otherwise those who don’t accept federalism can be called anti-peace and development because they have not seen what has taken back the people of South Sudan to square one.

Hence, Federalism is a political philosophy in which a group of members are bound together with a governing representative head. The term federalism is also used to describe a system of the government in which sovereignty is constitutionally divided between a central governing authority and constituent political units like states or provinces. Federalism is a system in which the power to govern is shared between national and central state governments, creating what is often called a federation. Proponents are often called federalists.

Moreover, the perception of some individual persons about Federalism is something that needs good advocacy so that those who have not understood the concept should learn more other than opposing it without good convincing the people of South Sudan.

Well, Federalism has various advantages for the country like South Sudan where social diseases like tribalism, corruption and nepotism and arbitrary arrests and killings are the only objectives and visions of Kiir Mayardit’s government in Juba.

However, I ran an article last year, May 2013 on my Column titled “Educating the nation” with Juba Monitor Newspaper in South Sudan about Federalism. After some time, order came from the highest authority to suspend my column for some weeks because the Managing Editor was intimidated. Many people gave me calls, others were appreciating the article but others were threatening me with arrests and disappearance.  But now, what is happening? Everyone is talking about it (federalism) everywhere in South Sudan.

First of all federalism creates and fosters patriotism and loyalty to the state. Many Americans feel close to their home states. They feel loved and owned by their state authorities. Federalism maintains the close relationships between the federal states and the people by giving power to the least important people in the grassroots.  

Practices pragmatism; running a country the size of the United States, with such a diverse population, is much easier to do if power is given to local officials. Likewise, state and local officials are closer to the problems of their areas, so it makes sense for them to choose policies to solve those problems. Why not South Sudanese to adopt this system of governance?

Federalism creates laboratories of democracy. This means that state governments can experiment on other federal countries’ policies and can learn from their successes and failures. Many politicians specifically in Sudan People Liberation Movement (SPLM) are always advocating for democratic reforms in the country, why not implementing this system when peace come to South Sudan?

In other hand, it also leads to political stability, by removing the national government from some contentious issue areas, federalism allowed the early United States government to achieve and maintain stability, if there is Federal system introduced in South Sudan in due time, South Sudan will be the stable nation globally.

Encourages pluralism , Federal system expand government on national, state, and local levels, giving people more access to leaders and opportunities to get involved in their government.

It as well ensures the separation of powers and prevents tyranny, Even if one person or group take control of all three branches of the federal government, federalism ensures that state governments would still function independently. Federalism, therefore, fulfills the framers’ vision of a governmental structure that ensures liberty.

Disadvantages

In any system globally there are pros and cons and for federalism it prevents the creation of a national policy. The United States of America does not have a single policy on issues. Instead, it has fifty-one policies, which often leads to confusion.

Secondly, it leads to a lack of accountability;the overlap of the boundaries among national and state governments makes it tricky to assign blame for failed policies.

And lastly, it creates citizen ignorance. Critics argue that federalism cannot function well due to ignorance and in South Sudan there is too much ignorance.

The way forward

If South Sudan is at peace, then federalism can peacefully be introduced without it being misinterpreted by people, but because there is too much mess in the country right now, people are ethnically divided and this has led to poor discussions over the matter. I would like to urge the two parties to come to common understanding and thereafter federalism will come automatically.

Each and every South Sudanese knows that federalism is what most of the South Sudanese communities are advocating for but rectification of the current crisis is very important before anything. I had experienced in this discussion about federalism, in 2011, 2012 and 2013, I was among the civil society groups that moved to all the ten states of the Republic of South Sudan, and what the Civil Society Resource Team on the Constitution got on the ground was the call for federalism. So, it is something liked by the majority in South Sudan. 

Out of ten states, only one state refused the idea of federalism. People of Equatoria and the SPLM-in Opposition should not put it in their heads that they are the ones who first started advocating for federalism.  If anyone wants, I can also forward to him/her what the civil society gathered for the last three years.

Recommendations

The Government of South Sudan under Kiir Mayardit and the Sudan People Liberation Movement in Opposition under Dr Machar should come up with the solutions to address the ongoing crisis rather than talking on something that will be resolved by the people of South Sudan as a whole afterwards. Introducing a new system of governance needs consensus and good enlightenment so that citizens get informed properly. The call for federalism is for all South Sudanese but for those who are not informed or who have not carried out any research claimed to have been the ones behind federal system of governance advocacy. Why didn’t you ask Civil Society Resource Team on the Constitution to tell you more about the work they carried out?

In conclusion, the federalism agenda was a system proposed long time ago when Sudanese were still one and it was accepted by then, therefore what is remaining is coming for the peace first and thereafter, the system will be adopted quickly. How can we introduce the system when people are still in the mess? Who will understand it? Will people not take it as divide and rule policy? Let us be realistic when we’re talking about something obvious. Talking about reforms within the SPLM as a party and the Nuer massacre that was carry out in Juba last year 2013 December , is what people should talk about in Addis-Ababa right now and the world at large. All South Sudanese are for Federalism based on the Constitutional dialogues which were carried out by South Sudanese Civil Society Organizations under the umbrella of Resource Team on the Constitutional making process.

The author of this article is an Independent Journalist and Columnist who has written extensively on the issues of Democratization and Human Rights in South Sudan. He can be contacted at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

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