Canada -- Everyone knew it was just a matter of time. But it is now official. The long simmering political rift between President Kiir Mayardit and his Vice President, Riek Machar, has ultimately bubbled up to the surface and brought to an end the ostensible cordiality that initially characterised the working relationship between the nation's two principals. The reason: power struggle within the party. This momentous twist of political fates, for the two leading chiefs in the land, has set the stage for the first and, certainly, the most contentious political showdown yet in the two year-old nation's independence history, since July 9, 2011.
All this came to light in a meeting-- held by the notorious; undemocratic communist-like body, known as Political Bureau--chaired by President Kiir himself. It was in that meeting that Mr. Riek is reported to have gone public when, though not unexpectedly but for the timing, he took every attendee by surprise by announcing his intention to vie for the position of the ruling SPLM party's chairmanship, a position which Kiir has hitherto occupied following the untimely demise of the South Sudan's Founder, Chairman John Garang de Mabior-- a man of enormous talents and remarkable charisma. In eyeing for this highly prized and coveted political position, Mr. Riek prepares to position himself to be the Second President of the sovereign Republic of South Sudan, giving him an easy ride into the Presidency and making the battle for the succession of the current Man On The Throne, President Kiir Miyardit, virtually a non-contest formality.
Mr. Riek, a Mechanical engineer by training, has cited numerous (seemingly valid) reasons and motivations for his long nurtured, if not nursed, desire to oust Mr. Kiir rather now than later. Among others, Riek cites Kiir's 'utter failure' to curb systemic tribalism and corruption in the country; failure to devise effective national political and economic plans and miserably failing to design policy programs for cementing the new nation's national identity and sharing the fruits of independence among all communities as envisioned a priori.
In contradistinction, Mr. Kiir, a career military general, who has portrayed himself as a genuine steward and guardian of South Sudan's peoples' aspirations for sovereign statehood, appears more determined than ever before to hold onto "his" throne, quite contrary to his earlier utterances that he would quit once the country became independent. Instead, Kiir now maintains that his priority during the turbulent Interim Period had been to singly ensure that South Sudan became independent, but now that South Sudan has robustly secured its (perhaps political) independence, he ought to be given another four-year-term to enable him focus on more fundamental aspects of national economic and political development.
But how realistic are these men's claims? To answer this question, let's briefly look at their past and present records in order to enable us to reasonably gauge the validity of their respective claims and what we can expect should one of them be the South Sudan's CEO, come 2015 or any time thereafter. The author forewarns the subject individuals, their supporters and readers alike that some comments herein are quite unflattering. They may or may not excite your raw emotions. Reader's discretion is thus advised.
Part I: Salva Kiir Miyardit Kuethpiny:
(i) As a Career Army General:
For the prime of his existence, Mr. Kiir has lived a life of commanding and being commanded. His obvious militant demeanour and inability to easily create rapports with the masses and colleagues alike can reasonably be explained by his background as a career military general from an early age.
Kiir joined the first southern guerrilla movement as a teenager in the late 1960s and was subsequently absorbed into the regular Sudanese army after the 1972 Peace Accord between Anya Nya I and the then junta government of Jafar Mohamed Nimeiri who took power in a military coup in 1969. From the Sudanese army, Kiir rose through the ranks to become a military intelligence officer. By the time the second insurrection was birthed in 1983 under the banner of the Sudan Peoples' Liberation Movement (SPLM) and its military wing, the Sudan Peoples' Liberation Army (SPLA), Kiir was a captain.
He became the fourth ranking member of the SPLM/A after Chief Garang, Kerubino Kuanyin Bol and William Nyuon Bany respectively, following the structural arrangements of the Movement at Bilpam, western Ethiopia that year. But the rest of his colleagues have since perished, leaving him not only the 'sole' surviving Founding Member but also an automatic heir to the throne by reason of his seniority-- after the demise of Chairman Garang, following the latter's ill-fated helicopter crash on July 30, 2005, enroute from Entebe, Uganda, to his base at New Site, South Sudan.
(ii) As an SPLA General:
After the death of Chairman Garang, Kiir was suddenly thrust into assuming the former's shoes. While opposition to Kiir's assumption of Chief Garang's position sprang out from the outset, some, including the author however, were of the opinion that while Kiir should not be handled with kid-gloves, he should be given the benefit of the doubt.
But those who were opposed to Kiir from the outset contended that if Kiir's past records are any indication, it is that he might not be able to provide the kind of leadership needed at such a critical time. Indeed those who are privy to the inner circles of the SPLM clique; the military history and modus operandi of the SPLA during the struggle opine that Kiir's military abilities remained quite wanting, arguing that Kiir had never been known for scoring major military victories against the Enemy whenever he led SPLA forces as the chief of military campaigns. Contentiously, 'irrefutable accounts" are often told that when in charge of a large scale military operation, the SPLA had often, if not always, suffered heavy casualties both in men and equipment.
One good example frequently cited in this regard is in respect of Operation Kon Anok campaign between 1989 and 1990 when Kiir led well equipped forcers of Intifadha brigades in the today's Lakes State. As feared, the SPLA suffered significant losses, including the death of his Deputy in command at the time, Commander Bol Agaany Dau Dhongkuat. Kiir was thus NOT known to be a great military strategist. Rightly or wrongly, the major concern for these dissenting voices was that South Sudan under Kiir would lose out miserably vis-a-vis the Sudan. Whether that has been the case, the reader is the best judge.
Commentators are however, unanimous in observing that Kiir's personal commitment to the cause of the people of South Sudan-- chiefly, to secure with and for them, a dignified existence-- remains unassailable. Analysts also concur that, despite his erstwhile colleagues' knacks for squabbling over seniority, leadership and fame, Kiir has never wavered from the common cause of the peoples of South Sudan, Blue Nile and Nuba Mountains nor used his broad- based support to build for himself an aimless political bastion. This point is readily conceded even by his adversaries who are bent on seeing him failed at any cost.
(iii) Kiir's Leadership Records Post-2005:
But as a de facto leader of the SPLM party and Commander-in Chief of South Sudan's armed forces, following the unexpected passing of Chairman Garang in 2005, Kiir's leadership qualities have been significantly tested time and time again. For instance, the SPLM's sustained political battles with the National Congress Party or National Islamic Party (NCP/NIF)--every single one of which Kiir has lost to al-Bashir--over the implementation of the Comprehensive Peace Agreement (CPA) provisions and sharing of important ministerial portfolios were the first signs that Kiir was not, arguably, up to the challenge. More importantly, commentators tend to generally agree that some of the outstanding indicators of Kiir's failing leadership, at least internally, include but are not limited to the generalities of the following:
(a) Commissioning the Drafting of a Defective Transitional Constitution:
The current Transitional Constitution of South Sudan is substantially deficient both in its context and content. For one, most, if not all, the provisions of the Constitution were simply copied and pasted from the text of the fundamentalist Mohamedist Constitution of the military junta in Khartoum. Very few leaders who have ferociously fought for a just cause over a long period of time, as Kiir did, would set up a constitution drafting committee only to write a Constitution whose substantive provisions are to be merely borrowed from a text inspired by sharia law and Hadith, or teachings of the Prophet of Mohammedism, which texts were written more than 1400 years ago and for the followers of that religion, for that matter.
Yet President Kiir had the audacity to set up a constitution drafting commission whose members appeared to have been either coerced to copy and paste provisions directly from the Jihadist Constitutional text or were entirely incompetent as to be incapable of envisioning a better legal system than the one copied from. The Transitional Constitution does not only fail to delineate matters that come within the jurisdictions of the federal and state sovereignties. It also appears to have been aimed at entrenching the political and economic interests of the Leviathan, consisting of the current Man On The Throne, the cabinet ministers as well as members of Parliament who are practically, or appear to be, immune from criminal prosecution during their time in office unless, where the situation so warrants as a result of exigent circumstances, their immunities are lifted either by the Parliament or the President, not by courts of competent jurisdiction.
Such a constitution clearly makes it difficult for law enforcement agents and agencies to carry out their constitutional mandates. It significantly paralyses the entire legal system, since the Constitution virtually places active politicians, and needless to say the Man On The Throne, above the supreme law of the land.
While the concept of political and diplomatic immunities--their functions and origins--will be an issue of a separate, albeit academic, treatment by the author, it is important to remember that the concept of the rule of law does not, generally speaking, exempt any individuals or groups from the reach of the force of law save only in very specific but very important circumstances which are beyond the purview of this discussion.
Sources close to those then involved in drafting of the Transitional Constitution reveal that the Constitution was drafted under a very intensive pressure and that every single line of every provision had to be inserted with the approval of Mr. Kiir himself. The validity of such a contention can be discerned from the fact that soon after the Constitution was signed by President Kiir to become the supreme law of the land, concerns surrounding one or two provisions, which may be referred to as "Governor Removal Clause" (discussed herein) began to swell. The Clause appeared to, and in fact still does, subject a governor's stay in office to the whims of the President. No sooner had this controversy began to grip the nation than President Kiir came to the media, in an attempt, to quell such concerns by assuring the public in general and governors in particular, that he [not just any president] was not going to remove any governor arbitrarily but that he would follow the procedural process prescribed by law in that very document and other enabling legislations.
Other sources yet reveal that a strong conflict of political interests among the Drafters led to the creation of such a warped--supposedly sacred-- legal document. Whether or not the former or the latter version was the case, the truth probably lies in between.
Nevertheless, if President Kiir's remarks respecting the Governor Removal Clause are anything to go by, the President's intervention in this respect plainly serves to demonstrate that the Constitution was written for the incumbent, rather than as a legal document to regulate the relationship between the state (read as the executive and the legislators) and individual citizens as well as other juridical persons. Such as a constitution, if that be the case unfortunately, is clearly defective ab initio because, for all intents and purposes, its object and purposes appear to promote or protect the interests of the ruling class and to insulate them against the reach of the law and from legal accountability.
These allegations, if they are truly a reflection of what went on behind the scenes at the time of drafting, undoubtedly demonstrate that the drafting process precisely contravened the fundamental premise of having a constitution, to begin with. Generally constitutions are intended to curb the encroaching curtain of the state (read as state plus state actors) by circumscribing, inter alia, the limits of the actions of public officials, entrenching the protection of fundamental civil liberties, life, and security of the person, subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
These allegations also show that the Constitution was written for short-termed goals, and mainly to benefit the Chieftain (the Man On The Throne) and the fiefdom or the Leviathan. A constitution that is not written with an eye to the future is clearly defective in its entirety.
The same mistakes might yet be repeated this time around because of the composition of the new commission, the so-called "Constitutional Review Commission (CRC)," which was established nearly two years ago to come up with the text of South Sudan's final constitution. The composition of the CRC should be a major concern for every fair minded citizen for a variety of reasons. First, The Man On The Throne and his entrouge appear to believe that the patch-work of the document, currently called 'Transitional Constitution,' is good enough a document that is worth "reviewing." The author begs to humbly and respectfully disagree for the reason that, besides the deficiencies mentioned earlier respecting its sources, the Transitional Constitution was not written with the robust involvement of a cross-section of the society, encompassing people from all walks of life: farmers, chiefs, herdsmen, military, police, Churches and representative from other civil societies, youths, SPLA veterans, doctors, engineers, "disabled," among others. It was written by lawyers and a few others who were solely handpicked by the President. Sadly, an overwhelming majority of those who are currently reviewing the Transitional Constitution, again handpicked by the President, are lawyers.
While lawyers, by virtue of opportunity, experience and training, are generally familiar with the language, drafting techniques, strengths and weaknesses of legal and legislative documents as well as the workings of legal institutions, lawyers themselves are not necessarily good constitution writers. Instead, their orientation, as officers of the courts, is to interpret and apply the provisions of the written texts of the law. But lawyers per se are not the most benevolent and far-sighted group of people there are. If that was the case, then lawyers would be the only eligible people to represent their respective constituencies in the legislative assemblies as lawmakers. But lawmakers should not, cannot and must not be lawyers only.
It is thus the author's view that the framers of this important and sacred text should come from all walks of life of the society and be given ample time, independence and the necessary space to enable them to thoroughly conduct research, access and study texts of constitutions and experiences of other countries (including South Africa, Kenya, Zimbabwe, Germany, America etc) so as to be able to produce a text that is well refined and that well envisions or reflects the aspirations and dreams of everyone (natural persons) and every individuals (natural persons and organisations) as entities and groups entitled to full protection both under and before the eyes of the laws they are to be subject to. Ample time also ensures that spurious legal concepts (some of which we have in the current Transitional Constitution) that are either utterly barren of valid reasons for constitutional entrenchment or are deemed to be properly provided for in their relevant enabling legislations, are not imported into the constitution.
In short, unless President Kiir embarks on the much needed political and legal reforms now, including decentralisation of political centres of power, voters should be prepared to swallow their expectations following electors' approval or extension of his presidency in the 2015 elections. This is because if these failings and abuse of political power are anything to learn from, they are premonitions of both political bankruptcy and kleptocracy.
(b) Botched Interpretation of the Constitution: The Case of "Governor Removal Clause"
One of the most glaring breaches of legal procedures under the watch of the current Man On The Throne has been his unwavering determination to finesse the Constitution (expanding or pigeonholing its scope) for the purpose of tailoring its interpretation to conciliate his personal whims.
A typical example of such a botched interpretation and application of constitutional provisions is in respect of the President's recent invocation of Article 101 (r) (called it "the Governor Removal Clause, "for lack of better words) of the Transitional Constitution to remove a democratically elected Governor of Lakes State from office. While the Constitution expressly bestows upon the President an imperative to remove an elected governor from the office on the account of the circumstances specified by Article 101 (r), the author hastens to add that this move, having regard to the circumstances under which the President invoked and applied the Clause, was both illegal and unconstitutional because only in very clear and self-evident circumstances is the Clause reasonably invocable by a sitting president.
The Governor Removal Clause provides that "[t]he President shall...remove a state Governor and/or dissolve a state legislative assembly in the event of a crisis in the state that threatens national security and territorial integrity."A close reading of the Clause reveals that its meaning will be found to be inconsistent with the manner with which the President removed the former Lakes State Governor, Chol Tong Mayai. The legal test for invoking the Governor Removal Clause is one of a very high threshold, a threshold which, when considered in the larger context of the theme and scheme of the Constitution, having regard to the essential principles of constitutionalism and the rule of law, can only be met in circumstances involving very serious social or political peril AND widespread national security threat within a particular state due to an impugned action, negligence or omission of a governor.Furthermore, the Clause is written in a clear and ordinary language and does not contain highly technical terms--call them legalese, if you will. It only requires basic statutory interpretation principles, set at the level of a competent reader of the text of the Constitution. Precisely, the elements of the two-part test, under the Governor Removal Clause, are:
1. "...a crisis in the state that threatens national security" AND:
2. a threat to "territorial integrity" of the nation.The reader should note that in order for the two-pronged legal test to be met-- that is, for the Governor Removal Clause to be triggered and invoked by the President-- the two elements must be met synchronously. Otherwise, the President will have no authority to act, lest he chooses, as he did in this case, to act unconstitutionally. The result would however, be different if the two elements of the test were joined by an "OR" as opposed to an "AND." If OR, which is not an option here, then meeting one element would be sufficient to trigger the invocation of the Clause.In the case at issue, the President would not be considered to have breached the Constitution if the two elements were otherwise met (in the Chol Tong Mayai scenario). Analytically, the first element can easily be met, because violence is so rampant in South Sudan that very few states will escape from the snare of the fowler, assuming that an impugned governor's act or omission is directly attributable to that governor at the state level.
Many South Sudanese appear resigned to the fact that the President has an unfettered constitutional authority to remove an elected governor. This explains why many were not bothered when Governor Mayai was removed from his elected office without due process or procedural fairness. But the natural question that flows from this situation is, did Governor Chol's pertinent action, inaction or negligence thereof, meet the requirements of the test? If the President was acting on the basis of the first leg (part (a) above), then one will naturally be obliged to ask whether it can reasonably be concluded that Lakes State is uniquely infested with violence, violence which threatens or appears to threaten national security overall. If this question is answered in the affirmative, the corollary to that question would again be: what elements of violence were considered to conclude that what happened or was happening in Lakes states was sufficient to warrant the removal of the said Governor?
If the cited elements answer this question affirmatively, then the next question would be, were the important considerations based on a particular or more numerical occurrence of violence in the Lakes region or were they based on the magnitude of casualties resulting from such violence, or both (keeping in mind that Jonglei has the largest number of deaths resulting from violence and yet the Governor is still in office)? Once again, if the first leg of the test in the above question is entirely answered in the affirmative, the second element of the test (part (b)) will be triggered. Was the territorial integrity of South Sudan violated by the subject Governor's action or omission?The elements of the test are inherently objective in nature, implying that the President's impugned interpretation does not and cannot stand in the face of an objective application of the facts to the legal test. There must be something a governor must be accused of, something that is capable of shocking the conscience of the public, something which, in the interest of justice and fairness, would favour the removal of the Governor as a matter of public interest.
Generally, the legislative intent envisioned by the Drafters of the Governor Removal Clause, it appears, was one that was aimed at regulating the conduct of a governor in connection with the exercise of authority at the state level, such as abuse of power by a governor, or a situation where a governor exercises or appears to exercise powers that ultra vires the scope of his/her constitutional authority. In fact in some cases, governors have deliberately or ignorantly assailed the core of federal powers that are conventionally immune from incursion by state authority. Conceding a territory of a state to another foreign state as Governor Taban did with the Sudan's Governor Haruun of South Kordofan in 2008, for example, is an act that should have attracted the President's wrath for the reason that the verisimilitude of such an act, under a proper functional legal system, is tantamount to treason on the part of such a public official. But for President Kiir, it was alright.
Even if the conditional power vested in the President were subjective in nature (which is not), a discretionary authority bestowed upon a constitutional officeholder generally cannot be exercised in a manner that is cavalierly capricious. But it is very clear from the wording of the Clause that this provision is not discretionary in nature. It is an authority that must be exercised at once. This is clear from the fact that the provision employs the term "shall" (imperative) as opposed to "may" (permission/discretion). Under statutory interpretation principles, this Clause would be found to import non-discretionary authority on the officeholder. The author is of the view that for such a Clause to be invoked, the President has to show beyond a reasonable doubt that the elements of the test have been met. Otherwise the President is constitutionally barred from removing a duly elected governor from office.
In invoking this Clause, the President also ought to recognise that a governor elected by the people is exercising powers bestowed upon that governor by the voters, and not by the President. To override the will of the people in such a manner can mean only one thing: that the President has little or practically no regard and respect for not only the Constitution or public interest but also for the democratic process as a whole, a deliberate subversion of the sacred principles of the rule of law and constitutionalism.
The entire statecraft, in such circumstances, becomes a one man's show or simply the rule of the Man On The Throne as opposed to the rule of law and constitutionalism. Such a mode of governance can only breed paternalism.In summary, this power: the President's authority to remove an elected governor, should be exercised in the clearest and rarest (very compelling) circumstances, a situation in which facts speak for themselves as to public interest and the need for the President to act expeditiously in order to save a nation in peril . In this respect, the President clearly committed both palpable and overriding errors of law and fact, thus, in all likelihood; acted illegally, possibly to achieve an objective that may hardly be seen as bona fide in nature, a consequence of which he destroyed the subject individual's career for no just but, arguably, questionable motive. No one should be deprived of their rights and freedoms enshrined in the Constitution save in accordance with the principles of fundamental justice.
In a free and democratic society, rights and freedoms of individuals are generally guaranteed subject to such reasonable limits as are prescribed and demonstrably justified by law. It is the author's opinion that the President's decree is not one of the reasonable limits prescribed by law and hence cannot be salvaged or defensible in law and on facts, since in this context, no legal authority, written words of the Constitutional text, rule of common law or political convention appears to permit, authorise or empower the President to remove a governor from an elected office.While the above remarks may leave an impression that the author has issues with the Governor Removal Clause, it is the author's opinion that the Clause is an appropriate postulate of our Constitutional structure and should be preserved and implemented in accordance with the overall scheme of the Constitution and constitutional principles such as constitutionalism and the rule of law. Questions as to the meaning of a constitutional clause should always be referred to courts, not the President, because only courts have the competent jurisdiction to declare the law as it is.
That is why it is not unreasonable to conclude that the President got it backward, having regard to the fact that he has no jurisdiction to interpret the Constitution. It is a decree that should have been a subject of judicial review by a court of competent jurisdiction. Unfortunately, the ejected Governor did not seek any judicial remedy nor did he endeavour to determine the Constitutionality of the said decree from the Supreme Court, under Article 128 (2) of the Transitional Constitution.
The context and content of the decree was so cavalierly gross and deficient in logic as to attract reasonable condemnation from the public, especially the Law Society of South Sudan. Such a botched interpretation of the Constitution constitutes a gross deviation from the fundamental ideals for which millions of South Sudanese heroes and sheroes, sung or unsung, invested heavily in blood and treasure. What is more, the Caretaker Governor that was immediately appointed by the President in lieu of an elected governor has continued to occupy the office in a manner that is not in keeping with the provision of Article 101 (s). This again is another evidence of fanciful or selective application of the Constitution, a blatant breach of the principle of the rule of law, on the part of the President.
(c) Arbitrary Application of Public Policy: The Case of Exempting Aweil from National Disarmament Policy, But Silence on the Fate of Communities Similarly Situated:
President Kiir's long military career appears to have permanently conditioned him into believing that leadership is all about commanding and being commanded. Yet as a civilian President, our Man On The Throne should learn to abide by the guidelines and protocols respecting his new status and its accompanying responsibilities as enshrined in the Constitution and governed by ordinary statutes, political conventions or regulated by rules of common law. Sadly, the President still feels that being a President, like the guerrilla commander he was, entitles him to make laws, policies and exemptions as he wishes without proper legal procedure or regard for the rule of law, constitutionalism and public interest.
A case in point is made with respect to the President's unilateral order to declare Aweil State exempt from the application of the Government of South Sudan's public policy concerning disarmament of civilians across the country in 2012. It should be carefully noted that the author is in no way opposed to the exemption granted to Aweil, given that state's geographical location and proximity to a hostile neighbour, north of the border. Thus while the author would entirely agree with President Kiir that Aweil's exemption was well deserved, the questionable aspect of this exemption was the scope and legality of the exemption itself, especially when there are communities and regions that are similarly situated but did not benefit from the presidential order regarding the exemption.
The disarmament process itself was and still is something that serves the interests of both the government and citizens alike since unnecessary loss of lives arising primarily from cattle rustling, intercommunal raids and ethnic based rebellions have arguably dashed the hopes of building a viable state of South Sudan, living in peace and security with itself and its neighbours. And because such an initiative was a public interest issue, the policy should not have been passed by means of Council of Ministers' resolution. Rather, it should have been authorised by means of a federal legislation, which legislation would have had to define the scope and geographical limits of disarmament, enumerate key players (such as creating the office of the Commissioner or Director, commissioners and their terms of office as well as security and military forces necessary to achieved the intended legislative objective). This would have closed the loopholes that are so far being exploited by political shenanigans who have frequently used the pretext of disarmament to settle political scores with those they deem adversarial to their autocratic leadership, notably, certain governors.
The legislation could have also made it clear that governors, commissioners and police authorities have no role to play in the disarmament exercise unless they are duly called upon to help. In fact this group should not be permitted, as they now do, to arbitrarily decide when and where they are going to carry out disarmament because such a public authority is vulnerable to misuse, and has, in fact, frequently been misused. To permit such an unqualified political decision in the hands of untested authorities would be a classical symptom of a 'state failure' in a country where well ordered chains of command and responsibility barely exist. In South Sudan, every chief is the sovereign of his or her own 'village.'
A federal legislation in this regard should have been enacted in such a way as to be sunset in nature. A sunset legislation is a statute for which the life-span of its provisions is made to last for a certain period of time, the expiration of which would call for the legislative renewal of that statute if the objective for which it was made has not been achieved within a defined time-frame. More importantly, it is in the legislation itself that the exemption should have been provided and compelling reasons given for such an exemption. The duty to give reasons is grounded in individuals' or groups' interest in knowing exactly why profoundly important decisions affecting them directly or indirectly (whether or not they are subjects of exemption) were made. Such reasons must be based on proper and rational foundation, be intelligible and adequate. A relevant legislation in this regard could have also provided for unforeseeable events and emphasised who would have the legal authority to act in such eventualities.
But for the President, especially after an important public policy such as this has been passed or declared, to turn around and incongruously decide that a certain section of the society is exempted from the application of a core public policy without giving reasons why communities and regions that are similarly situated are not included in that exemption, is to invariably invite floods of reasonable apprehension of bias.
The disarmament process was a public policy of such singleness, distinctiveness and indivisibility that deviation from its scope and application would defeat the very purpose for which it was conceived in the first place, especially where some people would be left entirely vulnerable to internal or external aggression. The necessity for maintaining a neutral posture in this regard was even more compelling particularly in an environment, such as ours, where communities do not trust one another. The President failed to show that he cared for all the citizens equally. For instance, while valid reasons existed, though the President did not labour, to explain why Aweil deserved to have been exempted, no corresponding reasons were given to explain why border communities such as, inter alia, those at northern Raja (Raga) at the border with Kafia Kingi, Jau, Pariang, Kuek and the Gong area of Renk, for example, were disarmed.
Concerns also abound that if the President is permitted to do what President Kiir just did, he or another President can similarly act in the future in an entirely different context. That is why such as act stands for a dangerous precedent because it opens the floodgates for unchecked authority in the system. The President's pronouncement should have thus been taken very seriously.
(d) Insensitivity to Popular Demands:
Adverse inference with respect to Kiir's leadership style during the last 8 years has also been made in the context of his odious apathy and indifference towards ordinary people's needs and demands, a consequence of which commentators have been unison in describing his government as virtually being out of touch with the people it governs. Not only does Kiir not attend funerals of fallen SPLA heroes in the battles as a sign of solidarity with bereaved family members and the nation at large, he does not even make efforts to visit and counsel people devastated by natural disasters or conflicts such as, for instance, failing to show up at the scene of the massacre of nearly 700 Lou Nuer people of Akoba by Murle bandits in 2010 or Murle massacre by Nuer in Pibor in 2011.
Similarly, Kiir has come across as a leader who does not own up to the mistakes committed by the government or state actors against civilian communities and individual citizens, especially where the government has been implicated in inflicting suffering or making suffering to be caused. He never makes any attempts to offer an apology on behalf of his subordinates nor vow to take action against the culprits. Instead, the Man On The Throne is well known for evading responsibility, thereby giving the verisimilitude of cover up in the eye of a prudent and reasonable citizen. One of such typical examples is the Wau Massacre of 2012, an incident which ultimately pitted the Fertit conglomerate of tribes against the Marialbaai Rek Dinka of Jur River County, but one in which the SPLA or government security forces were ultimately reported to have killed more than 10 people for no reason other than expressing their disagreement with the government's decision to relocate the county headquarters from inside Wau City to a location a few miles outside that city.
The Fertit community was of the view that such a relocation was unnecessary and thus chose to peacefully express their disagreement with the government by means of a peaceful protest which was met with unnecessary and disproportionate state violence, when government forces chose to indiscriminately fire live bullets at the protesters, killing at least10 people at the scene, said the reports. The government was said to be of the view that the relocation was part of the SPLM philosophy of "taking towns to the people." What was more, Kiir himself was later quoted as saying that the position taken by the government was final and that he himself would have fought those protesters. He was directing these statements to a community that was overwhelmed by an outpouring of grief and whose trust in the government they thought was theirs was irreparably betrayed. To make such utterances to grieving citizens is both insensitive and alienating.
It seems our party (the SPLM) has borrowed a leaf from the pages of medieval and Machiavellian history. Machiavelli, a notorious Roman philosopher once advised his Prince that it was better to be feared than respected by the ruled class. But the author counsels against such a style of governance. Such a Machiavellian style of leadership--of enforcing authority by terror, oppression, intimidation and even death--would, according to the legendary John Locke, confer the right of rebellion on the governed. The relationship between citizens and those they choose to lead them must be based on the concept of social contract between the people and their government. The government must hence respect and defer to public opinion, since it is the general will of the very people whom it persecutes that confers legitimacy on itself.
Our government must know or ought to know that the only way by which it can effectively enforce its policies and govern well is by convincing the citizens as to why the policy options it intends to undertake are more appropriate or preferable. It needs not enforce its policy by means of violence. Such an amoral and illegal implementation of a government policy flies in the face of democratic principles; and is, indeed, a clear denunciation of the very ideals for which South Sudanese had had to wage an unwavering armed struggle for independence for decades. Such ideals, needless to mention, include the desire to live in a state that respects their right to life, liberty and security of the person.
The SPLM government is supposed to canvass with the people, assess their views and input, persuade and impress upon them why they should agree with its policy programs. But intimidating or even killing people because they simply happen to disagree with the position taken by their government just goes to show that the SPLM believes that the masses are only passive subjects of development; that their views are not required, or that where they resist, force must be used to implement government decisions.
Fundamentally, coercion and violence as an instrument of implementing state policies cannot be excused in any society but especially in a free and democratic society. In fact, by and large, citizens disagree with government policies only when the government does not act or factor in their common interests. Dr Garang, even while a guerrilla leader, once acknowledged that any government can only claim legitimacy if it complies with the will and meets the demand or needs of the people. If not the people will find a way to drive them (SPLM) "into the sea." Such an immortal advice should serve as a guiding moral compass to the reigning Leviathan in South Sudan.
Another evidentiary conundrum, which riddles President Kiir's style of leadership with self-contradiction--and which, again, may point to his government's apathetic and indifferent approach to popular demands-- can be gleaned from the President's 2008 reply to Panaruu Community concerning the cession of Aliiny area to Kordofan. After a series of skirmishes in the Aliiny region (of Ruweng County) that includes Panthou, Bamboo (Roorlou), Gong-Yak, Teshwin and Panakuach, Governor Taban and Governor Haruun of South Kordofan signed a clandestine agreement in which Mr. Taban, without an express approval of the Government of South Sudan (GoSS) or consultation with the community, unilaterally ceded the region to Kordofan.
Not only does the Constitution not empower or authorise governors to deal with border issues, the manner with which the agreement was done actually caused such indignation to members of the community that the community felt utterly betrayed by the government it thought would defend its interests or in the least confer with them on matters of fundamental interest such as land. Such a contemptible, obviously disdainful, act on the part of Mr. Taban prompted some community members in Juba to write a letter to the President to ascertain his views respecting the matter. Out of agony, the signatories of the letter warned the government that the community would be compelled to act unilaterally if the government took no initiative to reverse the decision. To the rude shock of everyone, the President's scathing reply (a copy of which is in possession of the author) was so divisive and alienating that one would have thought it was written during the Machiavellian era by The "Prince."
The reply was written on behalf of President Kiir by one Majut Yaak, though it was signed by the President himself. Mr. Majut Yaak (one of a few relatives of the President who relocated from North America to South Sudan soon after Kiir became the President of Southern Sudan) is no longer working in the Office of the President but he is currently one of the wealthiest men in South Sudan(no one begrudges his rise from rags to riches. After all government officers have squandered billions upon billions of taxpayers' dollars). While it is arguable whether the President had a settled intention to frustrate and disenfranchise the Ruweng Ngok Dinka of Panaruu, a possible conclusion as to the intent of such 'unpresidential' remarks can only be adversarial. The President may not successful mount a non est factum defence in this respect for the simple reason that his appended signature shows that he very well understood the context and content of such a rancorous reply. And even if the President did not append his signature to the reply, the concept of respondeat superior applies because Mr. Majut was acting in the ordinary course of government business.
(e) Government's Failure to Protect Civilians: The Case of Murle Massacre by Lou Nuer:
President Kiir's leadership during the last 8 years also stands questionable on the grounds of having failed to provide protection to vulnerable civilians and minorities. In classical terms, the most important role of a state is the provision of security--physical and economic--to its citizens. A government that deliberately fails to provide adequate protection, from internal or external violence, to civilians in situations where it is capable of so doing is guilty of dereliction of a constitutional duty and thus violates the legal imperatives of social contract impliedly provided for in the Constitution.
Generally, the state is assumed to have the monopoly over the use of violence (although this classical understanding has substantially been waned in what may be called the "Age of Al-Qaeda). This means that where non-state actors, individuals or a groups, usurp such state powers, the state must swiftly move to bring them under control, by means of criminal outlawry, use of force by police, security forces or military, if necessary, in order to restore constitutional rule and order.
Whereas a series of covert elements of violent occurrences have been ongoing in South Sudan since the establishment of GoSS in 2005, most of those violent confrontations have not, in most part, been happening within the earshot of the GoSS. But there can be no denying on the part of the GoSS that what happened in 2011 (when armed Lou Nuer youths, planned, mobilised and marched onto Murle land with the purpose of exterminating the Murle minority in Jonglei state) was something both shocking and unconscionable. It was "shocking" because the government was quite aware of the plan since the state intelligence community (Agumuut) was acutely seized of every detail of it. The international community, under the auspices of UNMISS, also brought the matter to the attention of the GoSS. Regrettably, the government took no steps to prevent such a catastrophic expedition or to thwart such a potential genocide of innocent men, women and children in and around the Pibor area.
The government's failure to intervene was also "unconscionable" because such a failure could be perceived as amounting to discrimination of a minority. According to media reports (no official figures were provided since the figures provided by the then Pibor County Commissioner were denied by the government), at least 3,000 civilians, most of them women and children, were butchered in the course of ensuing, but entirely preventable, violence.
The pertinent question is, would the government have thwarted such a deadly plan if the target group was for instance, a section of the Dinka community? Your guess is as good as the author's.
While the author is not oblivious of the history of violence perpetuated by the Murlei community on its neighbours, an argument can be made that it was still unreasonable, negligent, improper and indeed illegal, on the part of the government to sit back this time around and allow the reign of anarchy become the norm. The government cannot use the lens of past inequities as a wedge to impair its constitutional duty to provide protection to all its citizens alike. While the author may be accused for not voicing similar concerns against the government when Murle bandits repeatedly waged attacks on their neighbours, it is here contended that it is not inordinate to assign less moral blameworthiness on the government in relation to violent incidents that took place without the government being aware as to such plans, most of which were about cattle rustling (and only became known after the fact).
But the specific Lou Nuer attack in question was quite different not just because the government was in possession of the knowledge as to its timing but also it destructive magnitude. It was an open declaration of war on the Murle Community by another community. It took the Lou community weeks to plan, mobilise and arm itself. This was well known, even to those outside the country. Yet the government's negligence to protect the said civilians, leading to unnecessary loss of lives and destruction of property, including a county hospital, is as bothersome as is the government's subsequent failure to hold to account the perpetrators of such heinous violence, particularly the principal culprits.
A government that sits back only to watch a section of its population being exterminated by another section and subsequently fails to follow up on bringing to book those responsible simply forfeits its right to claim sovereignty over the territory and the people it fails to protect. No wonder why South Sudan was recently placed in 4th place in the world rankings of Failed States. Dr. Luka Biong Deng's recent article on "Two Years of Independence..." provides a neat summary of an independent assessment of South Sudan's performance using various indicators.
According to Deng, "South Sudan was ranked number four (4) of the failed states, ranked number 143 in terms of Global Peace Index out of 162 countries, classified as not free country in terms of Freedom in the World Index, ranked number 124 out of 179 countries in terms of Freedom of Press Index, got six (6) scores in terms of Status of Political Rights compared with the least free score of seven (7) and got five (5) scores in terms of status of Civil Liberties compared with the least free score of seven (7)." This is the basic performance of our country, on a global scale, under the watch of His Excellency, Salva Kiir Miyardit.
Unless President Kiir swiftly moves to make urgent reforms in these and other respects, not only are his opponents likely to capitalise these absolute failings, they are well placed to make a cogent case against Kiir's failure to harness the energies of South Sudan's vibrant citizens for productive use. For these more other reasons, it can also be safely argued that the balkanisation of South Sudan is anything but well nigh (Nhialic forbids) for the reason that socially excluded communities will find a reason to a distinctive treatment.
(f) 'Nyan e Beny' Saga and its Nexus to Suppression of Expressive Freedom in South Sudan:
The primacy of freedom of expression as a fundamental aspect of democratic commitment is that it does not only permit the best of policies to be chosen from among a wider ranging array of proffered options but also ensures that citizens have an opportunity to participate efficaciously in the democratic process. As such, freedom of expression provides a robust environment for the discovery of "truth" and the medium for a meaningful dialogue which in turn creates a market of ideas from among which the society has the opportunity to make optimal choices. One may hasten to add that expressive freedom is not absolute in the sense that a balance act in relation to other rights may be necessary in some circumstances, if not always. It may as well be displaced entirely by yet another more pressing right in specific circumstances.
An instance of this situation is where regulation is necessary to control the impact of invectiveness arising from hate propaganda which tends to repudiate the very essence of democratic values promoted by expressive freedom. In particular, regulation of expressive freedom is necessary when the right to one's opinion pushes against the boundaries of responsible citizenship (especially when it manifests itself in the form of physical violence), at which point, freedom of expression ceases to serve its core purpose. Nevertheless, the ideals for which millions of South Sudanese gave up their lives include the right of free speech.
Unfortunately, since South Sudan became a self-governing body politic after the 2005 Comprehensive Peace Agreement (CPA), its government has strived to restrict free speech in ways that have left many scratching their heads. For instance, many journalists and civil society activists have arbitrarily been detained, jailed, kidnapped, tortured, or even killed (including the assassination of the most celebrated political commentator of our time, Isaiah Abraham, in 2012). News papers have also been confiscated or entirely banned.
To make matters worse, police authorities normally take orders directly from politicians who under the law have no authority to order or arrest anyone. As a result, ordinary citizens have practically been frightened to speak out either against political and economic neglect or ills perpetuated by the Establishment and are, ironically, scared to speak up for the rights they gallantly fought to protect, promote and defend. It has been established that in a dictatorship, when citizens' right to life, liberty and security are threatened, they tend to willingly acquiesce in incursions of their civil liberties by the state in order to gain some sense of personal safety. This appears to be the case in our country. South Sudan, under Kiir, may well be in all things dictatorial but name.
Recent reports by Amnesty International, United Nations Mission in South Sudan (UNMISS), UN Human Rights Council and Human Rights Watchdogs have painted a grim picture of brutalities in South Sudan including torture, arbitrary arrests and detentions, summary killings, rapes by our own men in uniform, security and police forces, etc, leading to the conclusion that there is a reign of terror and human rights breaches in South Sudan, much to the chagrin of many of our sympathisers. Of course President Kiir has been quick to rebut such allegations labelled against his government. That, of course, is understandable.
Yet all and sundry is aware of what transpired after intimate revelations respecting the infamous "Nyan e Beny" Saga. It was reported (and was not denied) that President Kiir was personally involved in ordering the arrest and torture of the two journalists namely; Ngor Garang (Editor) and Dengdit Ayok (Columnist), who wrote the story for their newspaper, The Destiny, in 2011. The Destiny has since then ceased to exist. In his own charge, Kiir accused the subject journalists of defamation. The author opines that such a charge did not disclose any reasonable cause of action for a number of reasons.
First the story was not merely fabricated. To constitute defamation, the impugned material must have, as its sole intent, no purpose other than for ill-will, spite, injuring or lowering the reputation of the victim in the eyes of reasonable members of the society. But where an impugned publication is based on an air of reality or fairly objective facts, and Nyan e Bany story is, a case for defamation can hardly be made out.
It is also worth noting that while everyone is legally entitled to privacy, including the right to private family matters, the President should know that when you are the president of a republic; when you live in a publicly funded housing (paid for by taxpayers' money, whether from oil revenues or direct taxes or even grants in aid), your family becomes a public family in more subtle ways than one. By default then, matters that affect your family, indirectly affect the public in a network of circumstances. As a consequence, the President's family has a diminished reasonable expectation of privacy. This explains why the First Daughter's case became a national, not just the Kiir family, affair.
Second, even if a case for defamation was made out in this specific allegation, the legal route it would generally follow is civil rather than criminal. This is so because defamation is essentially a civil matter which can only be handled in accordance with the rules of civil, not criminal, procedures. Yet the said journalists were subject to such dehumanising and cruel punishment for a matter that does not in anyway, attract prison punishment under any law. In the unlikely event that the authors of Nyan e Bany story were found to be on the wrong side of the law by a competent tribunal, the possible remedy in this respect would have been to order them to pay compensation to the President--or such order as the court may have considered appropriate in the circumstances-- as a token of acknowledgment of the injury to the Claimant and assignment of moral blameworthiness on the part of the alleged Defendants.
Instead of following the law however, some say that Kiir actually chose to ironically defame it. He was the Plaintiff, the Judge and the law Enforcer. It is in situations such as this that John Locke in the 17th century made a plausible case for separation of powers between the executive, the legislature, and the judiciary. No one can truly be an objective judge in his/her own case. The move by the President just underscores the fact that he was determined to apply a different standard of law unto himself and his family while everyone else (save perhaps members of the oligarch) would be subject to the rule of law.
The proclivity for politicians to tailor principles of trite practice to conform to their interests has been rampant in South Sudan. This includes subverting the rules of procedure of selection and election, for example. This may explain why President Kiir is currently rumoured to be working hard to twist the rules of party's basic documents such as the party's Manifesto and Code of Conduct. It is time the President should play the game well and show that he is an invincible player in his own right. He should not portray himself as a political desperado who cannot survive if he plays by the rules, for he otherwise will be playing right into the hands of his political adversaries. Nor should he appear to be so desperate that he cannot survive without the support of the old guards in the party. It is always good to be a nice guy. But playing nice does not extend to matters of significant public interests.
The more he plays nice to them especially in matters of fundamental national interests such as his arcane approach to corruption, incompetence in public service and sanguinary, the more he alienates the public. Conversely, bold decisions such as the one he took recently, though described by some as 'too little too late,' against self-indulging politicians to ensure that public officials who misappropriate public resources are held to account, will endear him to the public. Such an action is truly a step in the right direction. The nation is also looking forward to the day when the beneficiaries of the $4+ billion will be called to account for their unjust enrichment. This was an economic plunder, a daylight robbery in every sense of the word.
In a nutshell, the President truly has an enormous amount of work to do (emphasis added). He has to show that he will do things differently. Besides corruption and nepotism, there are monumental issues such as appalling education standards; lack of control of basic food prices (Juba is the 4th most expensive city in the world yet South Sudan is the world's poorest); the staggeringly inefficient taxation system; leaving too much power in the hands of a few who often abuse it, especially at state level (such as land grabbing by governors); reluctance to invest adequately in road networks (yet billions of dollars are being misappropriated by a few); and failure to listen to the voice of the people, among many countless others, are among the most pressing needs that ought to be given the urgency they deserve. These are some of the priorities that Kiir should deal with and capitalise on if he wants to survive the 2015 political battle.
In so far as loyalty to one's ethnic affiliation still hovers mightily above national interest in South Sudan, it is the author's contention that democracy is not yet mature for South Sudan. But that itself should not discourage South Sudan from making strides to sure that Rule of the Many is accorded its right place. With time, class interests, ideological inclinations and more importantly common interests such as security, employment among others will begin to sink in. Indeed it is no-brainer that with proper change in priorities, people will soon start to make choices not on their tribal affiliations but on the package deliverables that a politician aspires and pledges to avail to the citizens. So far, the euphoria of independence has been replaced by frustration and lack of basic necessities. Many have in fact realised that the President has not done enough or has deliberately put his personal interests (and some say his Gogrial community) above that of the nation, human rights and liberal democratic values for which many South Sudanese have dearly paid in blood and limbs.
For these and more other reasons, his critics and opponents alike are likely to argue that the President's democratic credentials, commitment to the rule of law and sustained intolerance to freedom of expression remain glaringly to be desired. For such critics, a regime that is not ready to stand any public scrutiny, including close inspection of the Presidential family by the media and commentators, is truly not a government of the people, for the people, by the people or run in the interest of the people (hopefully, that is not what GoSS is).
The SPLM should not sit on its laurels and pat its shoulders in self-congratulations for bringing about independence. Independence itself is not sufficient to guarantee security, justice, liberty, equality and above all, prosperity. Without taking steps to ensure fair and equal representation and allowing citizens to fully participate in shaping the destiny of a post-war South Sudan, we cannot be proud of anything but a perforated independence that guarantees nothing other than an opportunity for the ruling class to satisfy its whimsical dreams of creating a kleptocratic state in South Sudan. This would constitute a blemish or diminution of the heroic sacrifices of which South Sudanese are proud.
The following premise is fundamental: we have to get it right, right from the start. Case studies such as Botswana's and Tanzania's show that the first steps in founding a nation are very significant because they determine whether or not a country will quickly establish a political culture that will ultimately translate into a stable democracy. Conversely, starting on wrong footing such as DRC Congo or even Kenya did, for instance, will imply that such a country is in for a long ride, notwithstanding its many other blessings such as abundance of natural resources. In order to establish a stable environment for good governance and effective citizenry participation, the government must respect, accept and accommodate the views and contributions from its citizens. This includes placing an indelible premium on liberal democratic process, strict respect for the rule of law and observance of human rights and fundamental civil liberties as well as cultural pluralism.
Furthermore, studies after studies have shown that there is a direct relationship between democracy and economic prosperity as its relates to direct foreign investments as well as domestic investments because citizens are likely to invest in long term economic structures when they have faith in their own political system.
A president must strictly adhere to the established legal order and rules of practice. The principles of the rule of law and constitutionalism are fundamental postulates of such an order. The concept of constitutionalism implies that all laws and actions of public officials must be consistent with the Constitution. Any laws or actions that are inconsistent, in whole or in part, with the Constitution will be deemed invalid and have no force or effect to the extent of that inconsistency. The rule of law on the other hand postulates that the law is supreme over both public officials (including the President) and private citizens alike, hence preclusive of any arbitrary exercise of public authority. It requires maintenance of an actual order of positive norms, a sense of orderliness and subjection to established rules. Public officials therefore must comply with laws and not act as they please, i.e. as if they are still guerrilla leaders. No one is immune from the reach of law regardless of their status.
President Kiir should swallow his ambition and choose to do the right thing now. Even if he loses the election in 2015 for doing the right thing, he should be very proud about it. Former British Prime Minister once said, "sometimes it is better to do the right thing and lose than to win doing the wrong thing." Indeed right minded people normally feel good when they lose "doing the right thing" especially for the greater good "than to win doing the wrong thing" for oneself.
Part II: Riek Machar Teny-Dhurgon (coming soon).
Santino Ayuel Longar is a columnist for The New Sudan Vision. You can contact him via E-Mail:
 Luka Biong Deng, "Two Years of Independence: Is South Sudan on the Right Path" (2013, SPLM Yahoo Group Forum)