The Legality and Constitutionality of Determining the Number of States in South Sudan: A Review and Analysis of a Sticky Pre-Transitional Issue in the “Revitalized Agreement.”

January 2, 2020 Opinions

Opinion, Part I: The Number and Boundaries of States:

BY: Dr. Santino Ayuel Longar

South Sudan President Salva Kiir (R) greets South Sudan Rebel leader Riek Machar during the 32nd Extra-Ordinary Summit of IGAD Assembly of Heads of State and Government in Addis Ababa, Ethiopia June 21, 2018. (Photo: Third Party)

January 2nd, 2020 (SSNN)—Determining the number and boundaries of states is one of the stickiest Pre-Transitional issues under the Revitalized Agreement on the Resolution of the Conflict in South Sudan (R-ARCISS, the Agreement). Unless this issue is given all the attention and seriousness it deserves, it has the potential to undermine or even derail the entire peace deal.

The point of departure between the adverse parties revolves around both the nature and mechanism for resolving the number of states and their boundaries. While some, particularly in the Opposition, characterize it as a political matter that ought to be settled by a stroke of a pen or by some form of compromise among the parties, others, especially in the Government, contend that since the existing system of 32 states is already operational, it can only be undone or altered by means of popular consultations.

None of these claims, however, deals the legality and constitutionality of the matter as well as with the fact that the demand for more states is popular across the country.
This article is a contribution to the ongoing public debate concerning the number of states that South Sudan should have, both during the Transitional Period and beyond.

The Legality and Constitutionality of the Issue of the Number of States:

The issue of the number and boundaries of states is neither political nor merely an inconvenience to the existing administrative structures. Rather the issue should, in pith and substance, be understood as a legal and constitutional matter in two main ways.
First, it’s technically inaccurate to characterize the question of states as inherently political. Presenting it as a political issue, it seems, organically arises from a mistaken belief that since the creation of more states in 2015 was a result of the Presidential Executive Order #36 (the Order), the same executive instrument should be devised to alter their number and boundaries. This contention is, however, incorrect.

While it is true that the Order was the catalyst, the ultimate establishment of 28 States in 2015 (and later 32 states) was a result of due parliamentary process, not by the operation of the Order. This was evidenced by the fact that what followed the Order was not the operationalization of 28 states but a parliamentary debate and voting process. Both processes were consistent with the requirements of the relevant constitutional provisions.

Under Articles 59 (g) and 162, paragraphs (3) and (4), of the Transitional Constitution of South Sudan (TCSS), the authority to alter the names and boundaries of states as well as names of state capitals in South Sudan is vested in the Council of States. Both provisions stipulate that, to be duly passed into law, two-thirds of all active members must approve the alterations of names and boundaries of states. Meanwhile, a simple majority is required to change the names or locations of state capitals.

Furthermore, Article 101 (f) of TCSS ordains the President with the competence to initiate constitutional amendments or pieces of legislation which, if normal parliamentary procedures are followed, can be duly passed into law by the National Legislature with the assent of the President. Construed as such, the Order, which originated the parliamentary process that led to the creation of 32 states, was indisputably constitutional.

It stands to reason that although it was the originating action, the Order in and of itself did not eventuate in the establishment of 28 States in 2015. Instead, the effecting instrument was the legislative process that came on the heels of the Order.

Following those legal and constitutional procedures, the TCSS was subsequently amended to incorporate the new administrative units into our constitutional and governance structures. Moreover, considering that they are now in full-fledged operation, these structures are solely within the domain of the public, not of political parties or presidential authority.
Any system of laws which lies in the domain of the public cannot be unilaterally withdrawn, either by means of an executive order or an act of a legislature, without consultations with the citizens whose legal and constitutional rights and/or privileges will subsequently be affected.
The second way of understanding the issue of the number and boundaries of states as a legal and constitutional matter is evident in the 2018 Agreement itself. The Agreement recognizes the centrality of the divergence between the Government and the Opposition on the number of states and their boundaries as a Pre-Transitional matter.

For instance, Chapter 1 (being Annex E) of the Agreement establishes three main institutions or processes to deal with the number and boundaries of states prior to the formation of the Revitalized Unity Government. These institutions are the Technical Boundaries Committee (TBC), Independent Boundaries Commission (IBC) and the Referendum.
The TBC, which was staffed with experts drawn from IGAD and Troika countries, was expected to complete its work within 60 days from the day of the signing of the Agreement. Its task was primarily of defining and demarcating South Sudan’s tribal boundaries as they stood on January 1, 1956. This body attempted to carry out its mandate in 2018 and 2019. Its findings were, however, inconclusive as to the precise tribal boundaries as they stood on January 1, 1956. It is a matter of common knowledge, thus, that the TBC failed to fulfill that responsibility.

The IBC was then left to shoulder TBC’s incomplete work besides its own. The IBC comprised of ten (10) South Sudanese. Its main task was to determine the number and boundaries of states within 90 days from the date of signing. According to the Agreement, a vote by seven out of ten members on three choices covering 32, 10, or 21 states would be binding on all the parties. The Agreement further provides that if the IBC fails to conclude its work with a definitive finality, its process would transform itself into a Referendum.
Through the Referendum, thus, the people of South Sudan would be the final arbiter in determining the issue of the number of states and their boundaries. Since the IBC concluded its work in 2019 by voting 6 to 4, it stands to reason that Referendum will be the next phase for determining number and boundaries of states.

Against this backdrop, it is evident that the issue of the number and boundaries of states is both a legal matter and constitutional issue (having been incorporated into the TCSS).
A Political Solution or Compromise Would Amount to Fundamental Breach of the Agreement.

From the foregoing, it can be established that the contention that the issue of the number and boundaries of states is a political issue that can be resolved by means of a presidential decree or an agreement between the Government and the Opposition or by an external authority is a misleading claim. That is because such a solution falls outside the scope of the Agreement.

Furthermore, since the issue of the number and boundaries of states is an essential aspect of the Agreement, a political settlement would constitute a fundamental breach, having the capacity to deprive ordinary people of their right to participate in the political process.
This would impair not only their ability to choose for themselves a system of government. It’d also violate their right to participate in a political process that the Agreement recognizes as falling in the domain of public determination.

Part II.

The Fallacy of the Claim that Former Colonial Districts Had Clear Boundaries:
There is a common claim, especially in the Opposition circles, that the borders of 32 or more states are problematic. Undergirding this contention is a suggestion that, if a return to former 10 states is impractical, a more appropriate solution would be to adopt an administrative structure of former colonial districts by elevating them to states.
The Government, on the other hand, argues that creating more states is both a response to popular demand and a way of managing ethnic conflicts as well as enhancing unity in diversity. For this reason, the Government argues for a system that maintains the current 32 states, with the possibility of adding more states in future.

Yet, an insistence on elevating only former colonial districts to states is inherently mistaken in at least two ways. First, it isn’t persuasive to contend that South Sudan’s contemporary administrative units should be based on the decisions made more than 60 years ago by colonial authorities who’d nothing but vested colonial interests at heart.
Indeed, if our national policies and programs should continue to be determined or even dictated by the whims and conduct of deceased colonial masters, then the lofty claim that we’re an independent and sovereign state rings quite hollow.

It’s both fallacious and unreasonable to remain beholden to the dehumanizing colonial interests against which so many of our fore ancestors fought and died.

Second, the contention that only the borders of 23 colonial districts are known is fallacious. That is because the British Colonial Government didn’t actually determine the borders of 23 districts. Rather, all it did was only determine the boundaries of various ethnic and sub-ethnic communities.

For example, in the former colonial Yirol District, one can use the 1956 boundaries to determine with precision the boundaries of the Dinka communities of Ciec (Lou and Adoor), Aliab and Atuod (Apaak and Reel). Similarly, in former colonial Bor District, the Colonial Government mapped out the geographical boundaries among various Bor district communities (such as Bor, Twi, Nyarweng and Hol).

Another defect inherent in the proposal for elevating only former 23 colonial districts to states is that, it’s oblivious to the many defining events that’ve overtaken what might have been subjectively reasonable in the eyes of colonial authorities at the time.

Since the Sudan has been independent for more than 60 years now, one would expect a reasonable thinker to put into consideration many temporal factors.

For instance, at the time of independence, South Sudan’s population was about 3 million people. Today, South Sudan is estimated to be over 12 million people. Yet the 23-states proposal ignores the significance of population growth since 1956. It also ignores the necessity for adding more administrative structures to accommodate the needs of populous regions (such as Aweil, a region whose population is greater than that of Malakal, Kodok, Nasir and Renk combined).

It’d, therefore, be unreasonable to think that a populous region such as Aweil should still be administered under a single administrative unit, notwithstanding these demographic shifts.
Finally, the 23-states proposal doesn’t take into account the nature of contemporary relationship among various communities in South Sudan. One of the main arguments for using ethno-religious identity as a universal criterion for determining the number of administrative units is to ensure that communities that are largely compatible are administered together under one unit.
Similarly, those that are more antagonistic deserve to be administered separately. It is, therefore self-evident, that a determination of administrative units must consider not just demographic shifts and population growth but also the nature of inter-communal relations.

Concerns About Economic Viability of More States:

Legitimate questions have been raised about economic viability of more states. In this respect, arguments against more states in South Sudan tend to suggest that more administrative structures would siphon public resources for staff salaries; undermine economic development as well as delivery of essential services to people at the lower tiers of government.

Others also contend that comparing South Sudan to countries such as Ethiopia, Nigeria, Kenya or India is inappropriate. These countries, it is argued, have more robust and sustainable economies than South Sudan’s. At first blush, this argument sounds logical and persuasive, until one takes the time to look at it from a more practical standpoint.

First, in 2011, South Sudan was, for example, far richer than Kenya or India was at their independence. Yet in 1947 when it became independent, India’s priority was to get the issue of governance right from the outset. At that point, concern about economic viability of future administrative units of India was not the overriding issue, considered for determining the system of governance and number of states. India ultimately designed its administrative system on the basis of ethno-religious identities.

Second, fewer administrative structures don’t necessarily translate into rapid economic development. In fact, more administrative structures may lead to long-term political stability because it makes the government and public services more accessible to the grassroots.

As more autonomy is devolved to lower administrative units, each unit strives to increase its productivity, improve its tax collection system, and develop skills and capacity-building for local workforce.
Furthermore, if fewer administrative structures were a panacea for economic development, former North Bhar el Ghazel State (NBGS) would have probably have been the most developed state in South Sudan prior to 2013. That is because it had only 5 counties. Ironically, both former NBGS and Unity State consistently ranked at the bottom among other 8 states in terms of human development index.
This was so, despite the fact that former Unity State was receiving 2% of oil revenues in addition to what it also received from the Central Government in Juba.

Compare that to former Jongeli State which, according to the 2008 National Census, was the most populous state in the country. It was also the state with the largest number of counties (then 14). Despite this anomaly, however, former Jongeli State often did far much better than both former NGBS and Unity State. This shows that what matters is not more or fewer administrative structures.

Rather, what matters the most is an efficient use of resources, good stewardship and enlightened leadership.
Creation of More States is Consistent with the Agreement and Popular Demand:
As alluded to in the foregoing, the creation of more administrative units is consistent with popular demand for more states. It is along this line that both the main armed Opposition and the Government cited popular demand as a justification for increasing the number of states in 2014 and 2015 respectively.

As well, both maintained that the borders of these states would be consistent with ethnic boundaries as they stood on January 1, 1956. Seen as such, there is little room to deny that both sides were correct in citing popular demand.

To be sure, a study by the Sudd Institute in 2016 confirmed both claims. Furthermore, the 2012 Cobra Rebellion in Pibor was premised on the demand for self-government by Murle ethnic group. This Cobra demand was satisfied in 2014 when the Pibor Administrative Area was established following a peace deal between the Government and Cobra Rebellion.

Demand for more states were also put forth by other communities in different parts of South Sudan such as in Ruweng, Tonj, Yirol and Amadi regions. Moreover, when the group led by the former SPLM-IO’s Spokesman, Lul Ruai, signed a peace deal with the Government, one of his demands was the creation of a state for Greater Akoba area, separate from what was then Jonglei State.

Finally, the resounding outcomes of the three recent regional consultations as National Dialogue once again re-affirmed the case for popular demand. For instance, one of the resolutions of the Equatoria Consultations was the creation of 39 states. As well, in that discussion, the people of Equatoria resolved that a federal structure in which states have more autonomy was paramount.

The demand for more states and federalism was made even clearer in the Preamble of the 2015 Agreement. The Preamble provides that a federal system of government is a popular demand of the people of South Sudan and that for such a system to exist, it must be premised on the devolution of more political powers and economic resources to lower tiers of government. It also adds that such a system must reflect unity in diversity among the people South Sudan.

It must, therefore, be an act of bad faith that any party would impede progress on the issue of 32 states, having regard to the fact that both sides to the conflict had responded positively to popular demand for more administrative structures.

Conclusion:

From the above discussion, one can conclude that the issue of the number of states and their boundaries is not a political question. It is rather a legal and constitutional matter that must be resolved in a manner that is consistent with the scheme and spirit of the Agreement as well as constitutional requirements.

Indeed, if we are serious about a peaceful resolution to the conflict, we must implement the Agreement in the letter and spirit with which it was written. In this regard, a plausible argument can be made that since the IBC and TBC have failed to render their decisions with a definitive finality, the next phase for dealing with the number and boundaries of states boils down to one thing: Referendum.

Only a referendum would be consistent with both the spirit of the Agreement and constitutional requirements. Any other solution, such as political settlement or compromise, can only amount to a fundamental breach of the Agreement.

The assertion by some opponents of 32 states that South Sudanese masses are uninformed and should, thus, not be allowed to determine the system of governance is preposterous. Such an assertion ignores the fact that it is the same people who actually fought the war during the liberation.

They are also the same people who elected the President of South Sudan, their state governors, members of parliament, and participated in the Referendum that led to South Sudan’s separation from the Sudan. If they were ignorant or uninformed, they’d have not been able to successfully participate in these exercises. There is nothing so major or significant about the determination of the number of states that would warrant the exclusion of the South Sudanese masses from carrying out an exercise which the Agreement bestows upon them.

Santino Ayuel Longar holds a Ph.D. in law from Queen’s University in Ontario, Canada. Called to the Bar, Santino is a barrister and solicitor, being a member of the Law Society of Upper Canada, Ontario, Canada. He is currently an Assistant Professor at the Faculty of Law, University of Juba. His research; teaching and law practice interests are in international human rights law, the law of armed conflicts, public international law, administrative law, public law, constitutional law, political philosophy, legal theory, legal & legislative drafting; and law & public policy.
He can be reached at ayuelongar@gmail.com or 14sd23@queensu.ca

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