opinionBy Gabrial Pager Ajang
Can you imagine what the United States would do if a group of gangs or people abducted children, raided cattle and killed people at the Heartland? What if the same scenario happened in Europe and Australia, what would these governments do?
I asked these hypothetical questions because I would like to put issues and challenges facing South Sudan on global contexts. The beacon of American democracy and the root of American order were largely shaped the by framers and founding fathers of the United States, and I will this discuss their ideas later. As a United States citizen and have worked for Nebraska State legislature, I know very well that the United States government will move heaven and earth, and all necessary resources from the United States military to bring those who committed those heinous crimes to Justices. The government would punish these criminals to the fullest scale of their crimes because it is incorporated in the U.S constitution killings, abductions of children or taking another person's property is a crime. This is just a food for thoughts for those in our government who think they would be saved by the United Nations and the international community in an event of foreign aggression or mounting internal crisis. However, the restoration of peace and security in South Sudan lies with the president, interior minister, the head of police and the governors. It is their sole responsibility to join forces to combat the looming perpetual violence. Nevertheless, this paper will critic fault-line in the transitional constitution, escalation of child abductions and cattle rustling, implementation of the Comprehensive Peace Agreement.
The SPLM convention is imminent as the party struggles to prioritize several of its nerves wrecking issues facing the nation. The cattle internal rustlings and child abductions, wide spread corruptions, implementation of the Comprehensive Peace Agreement, controversial transitional constitution and many more. From the onset, it is important to point out that most tribes in South Sudan still use their traditional laws because they do not understand the transitional constitution, and its consistency with traditional laws? These tribes have been governed by customary laws, and these laws have allowed them to live and thrive for many centuries in their respective geographical locations. The traditional legal systems were informed by their norms, values and cultures. They have never imported Khartoum legal systems to resolve their issues because these tribes have had well-structured and respected hierarchy and order. The members of south Sudanese societies for many years have been adhering to laws and orders set and implemented by their community chiefs. Tribes have been guided by rules and laws but for purpose of this paper, I will use the laws of Wath Alal in Warrap State and Pawel ee Lith laws in Jonglei States as the two legal systems that indicated that South Sudanese societies have had established judicial systems that ensures criminals were brought to Justice. The two traditional laws are equal in case of intends killing or murders. Both traditional laws assume that human beings are rational actors who consider the consequences of their behavior before deciding to commit a crime, for instance, Pawel e Lith fines for murderer is 50 cows for unmarried individual, while married is fined for 30 cows and Wath Alal: fines 31 cows. The people who commit adultery were fined for 7 cows in accordance with Wath Alal laws and Pawel ee Lith.
The constitutional intends and traditional laws have not only been about the protection of economic rights, human rights and customary rights of those who did not commit crimes but put in place sentencing systems of incarceration, incapacitation, punishment to deter all sorts of criminals that have either killed people, raid cattle or stolen nation's wealth. The constitutional deterrence is not alien from our traditional laws, because both sentencing policy initiatives have often been implemented with the goal of enhancing the deterrent effects of the criminal justice system. Under the rubric of getting tough requires both the executive and legislative to annex policies of combating child abductions and cattle rustling design to deter criminals with the threat of imposing substantial terms of imprisonment for convictions. The judiciary system should also provide deterrent effects, and policy development regards whether to enhance sanctions or an enhance possibility of being apprehended, could provide any additional deterrent benefits as it did in South Sudan Societal laws (traditional laws).
The Roles of South Sudan Legislature
Nevertheless, people of South Sudan have been hopping and dreaming of a government that will annex and adopt a better transitional constitution that would protect their political, economic, human and customary rights. There was also a hope that the South Sudan's constitution would seek to remedy and ease post conflict issues. However, the paradoxical and complicated situation of South Sudan created by the last 50 years of war is unraveling and they impede the judicial progresses and legislative oversights. It is worth noting that the United States constitution took one hundred years before its ratifications, but the framers first dealt with the fierce urgency of those issues. Therefore I am mindful that it will take many years to bring laws and orders and balance of powers among branches of government. We wish that there were draft provisions in constitution of South Sudan that could supports the full implementation of CPA, but unfortunately none was drafted by the South Sudan legislative Assembly. CPA implementation could have been anchored in the constitution. But because this was not envisioned and done by famers and the legislative Assembly, it will continue to haunt Kiir's administration, and indeed it has caused the political gridlocks between the North and South that has impeded the progress.
Concurrently, it was not well spelled out in South Sudan's constitution that the CPA must not be renegotiated. The numerous renegotiations of the CPA by the South and North have made it almost impossible to implement. The several renegotiations of this accord made it more bureaucratic and create loopholes for its violations. While the peace talks between the South and the North were in progress, the legislative assembly in Juba did not annex policies that would have assisted its implementation, instead they support policies that backtracks the Comprehensive Peace Agreement. Presently, the policies proposed by the government of South Sudan for the last 7 years to remedy these complicated issues have done nothing but infringe on individual rights and slowed the judicial progresses. The roles of citizenship and Media rights have been denied. Political rights and rights to freedom of expressions have been infringed upon. Contrary to the government policies, South Sudanese citizens were hoping that the legislative assembly would craft laws that would secure the rights of citizens but the legislators did not successful adopt laws that protect economic rights, human rights, and customary rights. These rights have been enjoyed by South Sudanese tribes for hundreds years and virtually this government allows them to be robbed.
Despite, the freedom of press and expression enshrine in the South Sudan's constitutions journalists have been illegally arrested by government security agents. While our elected officials have constitutional duties to investigate and ask serious why citizens from their constituencies are incarcerated without properly legal standard taken. Members of the legislative assembly have rights to exercise their constitutional duties as elected officials by investigating issues surroundings assassinations or unwarranted arrest made, while ensure all the judicial procedures that requires that all the arrest made must be warrant by the judge or court. Despites members of legislative assembly constitutional rights, citizens are arrested without due process. It is simply unconstitutional for any security agent to arrest citizen because all the arrests are made by the police following democratic legal procedures. In recent incidents, Journalist was arrested in Awiel for failure to cover and air what was termed as the most important speech from the president. This month, another journalist was arrested in Juba for failing to cover another event. These incidents occurred because the transitional constitution of South Sudan fails to restrain and constrain security officials from arresting these journalists. These arrests have been seen by many through lenses of tribal eyes but these are rather classical example of failed South Sudan Legislative Assembly to intervene and investigate what led to these arrests.
The child abductions and cattle rustlings have rampant in South Sudan. The transitional constitution must immediately criminalize child abductions and cattle rustlings because these are the primary cause of tribal conflict and internal instability. SPLA can deal with few rebellions here and there, because that is the primary roles of the standing national army. It is also essential for South Sudanese societies to know that the child abduction is defined as crimes under the Universal Declaration of Human Rights Documents but it is unfortunate it is not clearly delineated in the South Sudan's transitional constitution. The post war issues are difficult to resolve in the time frame but I hope that the South Sudan's constitution could offer legal framework of resolving child abduction and cattle rustling to at least ensure adherence to all code of human rights and political stability in Jonglei, Warrap, Lake Unity States, at least where conflict is raging.
Without question, a significant number of South Sudanese has blamed the President. However, the legislators do have duties and responsibility to ensure that laws that would guide government functions and life of citizens are protected.
The Legislative Assembly could ensue following constitutional rights if people cling to power and their performances are not yielding tangible results:
1) It is the obligations and responsible of the legislators to impeach the president.
2) The legislators can pass vote of no confidence.
3) Grill and scrutinize seniors' members of judiciary, military and executive that are suspects of having commit crimes, issue illegal and unwarranted arrest from the court and harassment of journalists.
4) Summonses officials that have engaged in money laundry and embezzlements
5) Pass provision that would cease and prevent further renegotiations of the CPA.
6) The renegotiation of CPA have led to lose of 60% of Byei to Sudan,
7) The renegotiation of CPA violates the clauses of January 1st 1956 borderline between the South and North,
8) The renegotiation risk territorial integrity of South lands, and causes Pathou, Kaka, Anas and many more as parts of disputed towns.
9) The renegotiation of CPA change dynamic of the Security Arrangement Protocol, and suggest that SPLA withdraws from South Sudan lands and left it to the North.
Notes: there is nothing more honorable and dignified than for the president or minister to say that I have failed to discharge my duties and obligations entrusted in me by the citizens, therefore I resign from the presidency or ministerial position.
The legislators failed to exercise their duties bestowed upon them by the constitution.
The Framers of the South Sudan Transitional Constitution
The framers of the South Sudan constitution were not visionaries. They did not at least reflect on how constitutions of other democracies were drafted. For example, the framers of the Western countries' constitutions were visionaries. They envisioned constitutional laws that would serve their citizens, which is the constitution that was founded upon democratic ideals. The founding fathers annexed constitutions that would address the enduring issues of their times and of the future. These men reflected on good ideas of the past that would better serve citizens in the future. Because of this very reason, the founding fathers of the United States constitution grounded their constitution upon democratic ideal known as the social contract in (1762); this principle of rights that enhances roles of the government and citizens was coined by Jacques Rousseau during the Age of Enlightenment. The situations that engineer this idea were difficulties and conflictuals. The evidences show that the Enlightenment communities were engulfed in raging wars and violence's. Hence, Rousseau idea was significantly important for citizens to give up some sorts of their liberties in order for them to be protected by the government. Did the framers craft effective transitional constitution that would serve and protect citizens of South Sudan? I doubt it.
Indeed, all concern citizens have doubted whether the Bill of Rights embedded in the transitional constitution were strong enough to secure the economic, political and customary rights of all citizens. The written constitution shows opposite. It is difficult to comprehend understand how the framers could fail to craft better constitution in the midst of mass resources and human capitals that could have helped them? It is even amazing to see that the drafters failed to annex a constitution that would protect the roles of citizenship, freedom of expressions and political rights. We were all hoping that the transitional constitution would grant citizens due process and protect their rights. The transition constitution of South Sudan should have been grounded in the following ideas:
1) The framers of the transition constitution could have first and foremost seek to find a constitutional remedies to all issues and conflicts of the past five decades by writing a constitution that would protect life, property and land of citizens.
2) The framers by far failed to use the comprehensive Peace Agreement as blueprint of the South Sudan constitution and failed to incorporate and blend the Western's constitutional ideas and South Sudanese traditional laws into the transitional constitution. At the core of the CPA is protocol, a set of system and principle that was put in place to protect and guarantee protection of life, land, and property of people of South Sudan and marginalized areas. This could have not been overlooked.
3) The framers alienated the Western countries in the process of writing constitutions for example the United States, and other Western democracies, which in the first place support our independence and could have helped in the process of drafting. We should be mindful that Japan's constitution was written by team that sent from the United States. And the whole Europe that emerges from its ruin of Second World War was assisted by the United States.
4) The South Sudan government failed to recruited western educated sons and daughters of South Sudan to help in writings of the constitutions. There is no reason whatever why the government cannot see for the brighter and the best our country can offer to help in the process of achieving our statehood. The government of South Sudan failed miserably to at least execute policies and laws in its book.
In this globalized world, there could be no substantial reasons or explanation as to why our constitution was not well written. There should be no debate about basic human rights because we are expected to know the basic rights of our citizens. There should be no debate about what kind of laws that could be used to punish criminals because we all know traditional laws of our societies if in fact we do not know laws of constitution for one reason or another. The bottom line is that the people of South Sudan must be exclusively granted economic, and political, customary rights or this government will fail! The government must be made aware that the indigenous rights and customary rights, because these rights are well incorporated in the Universal Declaration Rights. The fact that their children are abducted and their cattle are raided is a clearly violations of international law and the Legislative Assembly must be made aware.
The most fundamental concept of democracy is the idea that government exists to secure the rights of its people and this principle is based on the "consent of the governed" an idea that enhances and develops from the social contract. James Madison, framer and father of the United States constitution took the consent of the governed and use it to design and craft the United States Constitution, and this idea has endured for more than hundred fifty years. Likewise, the framers of South Sudan constitution could have drafted a transitional constitution that would address current specific challenges facing the nation and envision future problems. In so doing, they would have established the foundational principles that would sustain and guide the new nation into uncertain situations of the future.
Despites, all existing constitutional issues, the framers blindly grant wide arrays of powers and privileges to the president probably for one reason or another. These powers given to President undermine and diminish the status of our country among the nations. It also shows citizens' rights to elect their governor are deprived. It is disappointing because it sends wrong messages to the world. I still wish the drafters could have crafted a constitution for current citizens of South Sudan and for the next generations because the constitution lives forever but the presidency ends with the terms limit. I hope the people of South Sudan understand the gravity of this issue.
Since, we long for better ideas in our constitution, the concept that shapes the United States constitution and makes it better than any other western constitutions was an idea derived from the English greatest philosopher and political writer, John Locke. He coined and echoed that the government should protect life, Liberty, and property. The framer and the founding father of the United States constitutions, Thomas Jefferson remarkably and momentously refurnished the same idea and put it in these words "we hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." It is very evidence in the United States constitution that the life, liberty and property of all citizens must be protected. It is also evidences in South Sudan that the insecurity will remain as the sole sources of problems as long as the child abductors and cattle raiders are not criminalized.
The Kiir's administration must with the issues of child abductions and cattle rustlings in the constitution to avoid tribalization and accusations of human rights violations. The legislative assembly has presided over the most fraudulence transitional constitution ever in the history of the world. The constitution serves the president and infringes upon the rights of all citizens. Although, the president rightly uses his constitutional power to fire the governor of Lake State, it is absurd for any president to layoff leader that was elected by the people. Could this be a wakeup call for the so call legislators to amend or review the constitution? It is simply stunning for the world to see the country it supports to gain independence acting abnormally.
The fundamental principle that anchored a nation on strong foundation is Bill of Rights. The human, political, economic and customary rights could have been the cornerstone of South Sudan transitions constitution but unfortunately kiir's administrations knowingly violate these rights. The South Sudan Legislative Assembly presiding over this fraudulent transitional constitution that serves nobody but the president fails to act. I personally doubts whether legislative assembly knows its primary responsibility. It is interesting to see the legislative Assembly allows citizens to be robbed of their rights which basically left citizens left at the mercy of the President.
Even in the midst of these tragic and unbearable situations, the people of South Sudan are optimistic and have remained calm. They have developed patriotic faith and love for their country during the liberation struggles. Citizens hope and dream for a Leader that would enhance management capacity, as well as ensuring a constitution that protects their rights. We are optimistic society, therefore we will continue of dreaming if this leader does not change it course. We will continue dreaming for a leader that would play integrating roles of nominating people who would champion diplomatic policy that would serve the interests of citizens and maintain our ally around the world. We would long for a president that would frequently send ministers to survey and assess villages that were ravage by war and reports on how such situations can be remedy. We basically need a leader that would frequent visit states and reacts when his citizens are killed. In this nascent nation, domestic policies should be aimed at training and development, performance management, public service ethics, and succession planning, because better understanding of public leadership begins with an understanding of one's self within a framework of guiding policies and tactics of getting things done.
Let us be practical in term of implementing a policy, decision to move headquarter out of Wau was a colossal failures. It is not a good sign of any democracy to abruptly move the headquarters without the consent of the governed (citizens). The president and governor would have joined their hand and sell their policy of moving headquarter out of Wau to citizens. This policy would have created a better debate and dialogue between the governor and citizens. It would have also revealed the positive and negative consequences of this policy. The consent of the governed is an essential part of the constitution. It is the responsibility of all the public officials, the president and governors to draft policy and sell that policy to citizens. The citizens are the ultimate decision makers, they can choose to accept or reject policy based upon policy benefits and disadvantages. It is vitally essentially for all government officials to allow all the stakeholders understand what sorts of policy, its repercussions before its implementations. Notes: that if all the procedures of implementation policies were taken, lives of people in Wau would have been saved and Wau's tragedy could have been avoided.
To conclude, the SPLM must redeem itself from its sins of the past seven years in its Extra-ordinary Convention, if indeed this convention is worth to be given this name. Our party must elect a candidate with credentials and leadership capacity, other elements of resolving public controversies include employing effective communications skills and strategies and the ability to resolve conflicts and disputes for 2015 elections. Among the most important qualities of leadership is the attitude toward change. In fact, effective public leaders are distinctly dissatisfied with the status quo. They are often willing to take risks to initiate improvements. The skills of an effective leader include: recognizing opportunity and knowing how to make the most of it; optimizing group effectiveness; understanding the basics of planning; the ability to effectively network; willingness to delegate; knowing how and when to challenge others understanding the benefits of change and not hesitating to implement it when needed; and willingness to take risks. We need a leader with clear judgment and ability to reach logical conclusions and make high quality decisions based on available information, and skills of identifying educational needs and setting priorities. Ministerial positions have been recycled and I think the recycling is completed. I urge the president and ministers to give the new progressive generation a priority to serve their country. The Lost boys possess a unique traits and behaviors of effective developmental leaders whose primary focus is the development and democracy. They have been asked to wait since 1987, when will their tomorrows come? I think they have been prepared and groomed to tackle huge issues and challenges of today. The South Sudan land owed them huge debts. The torch must be must passed to them if we want our country to be put in a road to good governance, rules of law and democratic ideals. This generation is prepared to handle external and internal forces pressure on leaders and they could find ways of delivering services to citizens while maintaining high government ethics.