Africa

Fresh clashes in the Central African Republic’s southeast have driven some 400 people to seek shelter at a UN base there, the United Nations Spokesperson said on Wednesday.

Implementation of the 2015 peace agreement in Mali provides the only pathway for stabilization there, the head of UN peacekeeping told the Security Council on Wednesday. 

Ongoing instability in Sudan’s West Darfur region has left the lives, health and safety of thousands of women hanging in the balance, according to the  United Nations Population Fund, UNFPA. 

The mining of gold in unregulated and often hand-dug pits in West Africa, can be a deadly occupation, but one which many impoverished people in the region are pushed into by necessity, according to the International Organization for Migration (IOM).   

The targeting of the Hema community in the Democratic Republic of the Congo (DRC) with violence, including killings and rape, may amount to crimes against humanity, said the UN on Friday. 

The top UN official in West Africa and the Sahel updated the Security Council on Wednesday, describing an “unprecedented" rise in terrorist violence across the region.

Countries are being asked to step up assistance to the Democratic Republic of the Congo (DRC) which is facing the world’s worst measles epidemic, with more than 6,000 deaths since the start of last year. 

Around 40,000 have been displaced in Sudan’s West Darfur state in recent days, following intercommunal clashes, the UN Office for the Coordination of Humanitarian Affairs (OCHA) said on Tuesday, citing Sudanese Government data.

The top UN official in Libya has delivered a stern message urging other nations to stop intervening in the country’s ongoing crisis. 

The UN Support Mission in Libya (UNSMIL), on Sunday strongly condemned the bombing of a military academy in the capital Tripoli, which according to news reports left at least 30 dead and more than 30 others wounded.

Authorities in Sudan are being urged to restore peace and order in the wake of intercommunal clashes in West Darfur state which erupted on Sunday and left 65 people dead, 54 injured, and thousands displaced.   

The abducted four-year-old son of a UN migration agency worker who was killed in South Sudan in October has been released and reunited with his father during an emotional reunion in the capital Juba on Friday.

Shelling near a major facility run by the UN refugee agency (UNHCR) in the Libyan capital Tripoli on Thursday, has sparked deep concern for the safety of refugees and asylum seekers there.

January 2, 2020 (KHARTOUM) - 18 people were killed, including military personnel, judges and four children, after the crash of a military cargo plane, in El-Geneina airport.

The Antonov-12 cargo plane crashed minutes after taking off from the capital of West Darfur State, on Thursday evening, according to the Sudanese army spokesman Amer Mohamed al-Hassan.

The plane "crashed 5 minutes after taking off, resulting in the death of its 7-member crew," four officers and three other ranks, "in addition to three judges and eight civilians, including four children," said al-Hassan

The Russian four-engine plane crashed while it was heading back to Khartoum after transporting humanitarian assistance for the victims of the tribal clashes that erupted in El-Geneina on 29 December.

Last year several the Antonov-12 cargo planes crashed under similar circumstances shortly after taking off.

The Sudanese military spokesman gave no reason for the incident but said the crash will be investigated.

Sudanese Minister of Justice, Nasr al-Din Abdel Bari had to fly on the plane which crashed in El-Geneina but he missed the fight due to the ongoing investigations into the clashes.

Prime Minister Abdallah Hamdok is still in El Geneiena as he continues to meet tribal leaders after the bloody tribal clashes.

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January 2, 2019 (JUBA) – South Sudan President Salva Kiir has pardoned jailed activist Peter Biar Ajak, renowned businessman Kerbino Wol Agok and 28 other inmates in a decree issued Thursday.

Kiir addresses a news conference inside his office in the capital Juba September 12, 2013 (Reuters photo)

The decree, read on the state-owned TV (SSBC), came a week after the South Sudanese leader promised while visiting Juba Central prison to free prisoners with good conduct.

On June 11, the High Court in Juba sentenced Biar to two year in jail for inciting violence and disturbing the peace over interviews he gave to the media during a stand-off between inmates and guards at the National Security Service (NSS) headquarters in October 2018.

Wol was handed a 10 year sentence for violating section 67, 72, 79 and 47 of the penal code of 2008.

The South Sudanese leader, in the latest decree, also pardoned inmates from Juba Central Prison as well as from Wau, Tonj, Kwajok and Torit state prisons.

In December last year, Community Empowerment for Progress Organisation (CEPO) appealed to the president to demonstrate reconciliation by not only pardoning jailed inmates with minor cases, but also pardon those with political implications like Biar and Wol, among other prisoners.

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An economic crisis in Sudan which has driven up food prices in the African country has contributed to an increase in the number of people needing aid; that’s according to the UN’s humanitarian affairs agency, OCHA. 

January 2, 2019 (KHARTOUM) - Thousands of women took to the streets of Khartoum calling for gender equality and the ratification of an international convention for women rights.

Sudanese women participated massively in the four-month protests that led to the collapse of the former president Omer al-Bashir whose Islamist regime oppressed women and confiscated their rights.

Sudan is one of only three countries (Iran, Somalia, Sudan) that has not ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

The demonstrators held national flags and banners calling for gender equality some of it read "The whole world except us. You ashamed us".

The demonstrators marched to the office of Prime Minister Abdallah Hamdok where a women delegation handed over a letter co-signed by 46 civil society groups and 13 political parties calling for signing and ratification of CEDAW.

The letter seen by Sudan Tribune urges the government to sign and ratify the CEDAW during the transitional period to spare the coming generation of women falling again into "the clutches of repression, hardship, injustice, terrorism and exploitation".

"We strongly believe that the international legal framework will provide a legislative umbrella for the protection of women, in their diverse backgrounds, and will allow them to effectively participate in public life in a way that ensures justice and equity," further stressed the signatories.

Last November Sudanese women welcomed the repeal of Public Order Act, an archaic law policing women's behaviour introduced by al-Bashir's regime in 1996.

However, women's rights campaigners say they are not fairly represented in the government where they are only four women of 18 ministers.

They pointed to a recent list of nominees for governors saying it does not include a single woman.

But, the most important of them remain laws to protect women of female genital mutilation (FGM) and child marriage. Also, they raise child marriage as the Islamic personal status laws allow girls to be married once they hit puberty or, at the age of 10, with a judge's permission.

"These policies are demonstrated in the personal status laws, in the discrimination embedded in laws pertaining to work and freedom of movement, in the policies related to citizenship and records of births and deaths, in the health and economic policies, in the enrolment practices (...), and other discriminatory policies inherent in the structure of Sudanese state, which are still in force to this day," said the letter.

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January 1, 2019 (JUBA) – The National Salvation Front (NAS) said it handed over 23 persons under is protection to the International Committee of the Red Cross (ICRC) on December 31 to be reunited with their families.

Exiled South Sudanese rebel general Thomas Cirillo poses for a photograph inside his hotel room in Addis Ababa, on April 17, 2017 (Reuters photo)

NAS, in a statement extended to Sudan Tribune, said the 23 persons came under protection of their forces after allegedly being abandoned by South Sudan army (SSPDF) fleeing NAS counter offensives to the army in different Central Equatoria area locations.

“Due to the vastness of the area coupled with the insecurity situation caused by the ongoing SSPDF military offensives, the NAS command in the area relocated the civilians to safe locations causing the delay to reunite them with their families,” partly reads the statement.

It added, “All of them were in good health at the time of the hand over”.

The hold-out opposition movement thanked ICRC for its “patience, cooperation and effective coordination”.

Meanwhile, NAS reiterated its commitment to abide by international humanitarian law as well as human rights law that protect human life and dignity non-combatants and innocent civilians are protected.

(ST)

A Response to Dr Santino Ayuel Longar

By Dr Lam Akol

On the 31st of December 2019, Dr Santino Ayuel Longar published an article on the issue of the number and boundaries of the States in South Sudan. From his academic titles displayed in the article, there can be no doubt that the author is a lawyer by training. The article dealt with two aspects of the matter. It claimed that the issue was not political but legal and constitutional concluding that the “process that led to the formation of the 32 states, was indisputably constitutional”. From this premise, he proceeded to suggest that any attempt to resolve the matter by doing away with the 32 states was not only contrary to the popular demand but a violation of the Peace Agreement itself. He then contemptuously dismissed the former districts at independence as “decisions made more than 60 years ago by colonial authorities who'd nothing but vested colonial interests at heart”. It is these claims and others in the Article that this piece intends to address.

1- The legality and constitutionality of the Order establishing the 28/32 states.
One begs to disagree with the learned lawyer in his conclusion that the “process that led to the formation of the 32 states, was indisputably constitutional”. In fact, the contrary is the case. A cursory look at the Transitional Constitution of South Sudan 2011 reveals that the Establishment Order Number 36/2015 AD that created the 28 states was a violation of the Constitution, legally invalid, usurped the legislative powers of the Parliament and inconsistent with the provisions of the Peace Agreement 2015.

A. Inconsistence of the Order with the Constitution

1. The number of states constituting the Republic of South Sudan is determined by the Constitution. Article 162 (1) of the Constitution provides that “The territory of South Sudan is composed of ten states governed on the basis of decentralization.” Therefore, there can be no valid modification to the number of states in the Republic of South Sudan that is not through a constitutional amendment.

2. Article 199 of the Constitution governs the amendment procedures. It provides that “This Constitution shall not be amended unless the proposed amendment is approved by two-thirds of all members of each House of the National Legislature sitting separately and only after the introduction of the draft amendment at least a month prior to deliberations.” The constitutional amendment is, therefore, a function and power that is squarely within the domain of the National Legislature. The textual, contextual and linguistic formulation of this provision clearly excludes other arms of government from amending the Constitution.

3- Order number 4 of the ‘Establishment Order No 36/2015' purportedly establishes 28 states. The implication of this Order number 4 is that contrary to the provision of Article 162 (1), the Republic of South Sudan is purportedly composed of 28 states. Order number 4, therefore, amounts to an amendment of Article 162 (1) of the Constitution without complying with the constitutional procedure of amendment. To be valid, the Order must be issued in accordance with the Law and in a manner consistent with the Constitution. This is not the case here and, as a result, the issuance of the ‘Establishment Order' is an abuse of the powers of the President.

4- Order number 1(2) read together with Order number 10(2) confer the ‘Establishment Order' with what amounts to ‘self-standing and self-executing' legislative powers and, thus, supreme to the Constitution. Order number 1(2) provides that “The Establishment Order shall come into force in thirty (30) working days from the date of signature by the President of the Republic.” According to Order number 10(2) “This Order shall not be amended save by another Order issued to that effect by the President of the Republic.” Consequently, by purporting to operate validly outside the Constitution, this Order offends the principles of the supremacy of the Constitution and, thus, inconsistent with Articles 3 of the Constitution.

B. The legal validity of the Establishment Order

5- To be valid, an act or omission must be undertaken in accordance with the Constitution or law. It is acknowledged that under clearly defined restriction the Constitution grants the President powers to make subsidiary legislation. Article 86 (1) provides that “In the case, the National Legislature is not in session, the President may, on an urgent matter, issue a provisional order having the force of law.” Article 86 (3) excludes the President from issuing an order that affects the decentralized system of government or boundary of states. In addition, Article 92 provides that “The National Legislature or either of the two houses has the power to make any subsidiary instrument having the force of law… provided be subject to adoption or amendment by a resolution of that House in accordance with the provisions of its regulations.”

6- The valid exercise of the power provided for under Article 86 demands that the President must comply with three conditions, relevant to this issue: 1. The subject matter of a provisional order must have been urgent and the National Legislature must have not been in session. 2. The Order must be submitted to the appropriate House for consideration. 3. The President shall not make any provisional order on matters affecting the decentralized system of government or alteration of administrative boundaries of the states. At the time the President issued the Order, the National Legislature was in session. Further, the ‘Establishment Order' does not provide for subsequent tabling before the National Legislature nor does it anticipate any modification to the terms of the Order by the National Legislature. Finally, the ‘Establishment Order' affects the decentralized system of government and alters the administrative boundaries of the states.

7- The language of Article 86 (3) makes it clear that the Constitution did not intend to confer on the President unilateral powers to establish new states or alter boundaries of existing states without parliamentary oversight. In this case, the public was not consulted and there were no clear and prior agreed criteria for establishing the new states. By acting inconsistent with the constitutional power granted to him, the President disconnected the rational link between the exercise of power and the purpose for which the power was given – a concept central to the rule of law. 8- To validly exercise the power under Article 92, the President must have been delegated such a power by-law passed by the National Legislature. In addition, the subsequent order, regulation or subsidiary instrument issued by the President must be subject to adoption or amendment by the National Legislature. There was no such legislation authorizing the President to issue an order altering the decentralized system of government and administrative boundaries of the states. In addition, the Order excludes the National Legislature either from adopting it or amending its provisions. One of the reasons for which the Constitution retains the review power of the National Legislature is because, unlike the executive, the process of the parliament allows for participation, checks and balances.

C. Usurpation of the legislative powers of the National Legislature

9- Lawmaking is the pre-eminent domain of the National Legislature in South Sudan. The Constitution confers the powers to make laws on the National Legislature, the powers to adjudicate on the basis of existing laws on the Judiciary, and the powers of enforcing existing laws made by the National Legislature or under its authority, on the Executive arm of the government. This is the general doctrine of the separation of powers. The wording and the structure of the Constitution provide for the principle of separation of powers. Although not a separately articulated provision, non-compliance with the Constitution's scheme for the separation of powers is justiciable on its own right but also amount, in its case, to violations of other provisions of the Constitution. This principle of separation of powers ensures that every arm of government may exercise no power and perform no function beyond that which is conferred upon it by law. Under no circumstance does the Constitution delegate its plenary.

10- The Constitution provides that it shall be the competence of the National Legislature to make plenary laws. According to Article 55(3)(a), the National Legislature shall “Consider and pass amendments to this Constitution.” Article 55(3)(b) further states that the National Legislature shall “enact legislation on all matters assigned to it by this Constitution.” The decentralization and alteration of administrative boundaries of states and changes in the names of such states or the names of capital towns of the states are matters assigned only to the National Legislature by the Constitution. Article 59 (a) provides that the Council of States shall be competent to “initiate legislation on the decentralized system of government and other issues of interest to states and pass such legislation with a two-thirds majority of all representatives.” Article 59 (g) further provides that it is the Council of States that has the competence to “approve changes in state names, capital towns and boundaries.”

11- By purporting to issue an Order having the force of law that amends the provisions of the Constitution by its implication and alters the boundaries, names and capitals of the states, the President usurped the legislative powers of the National Legislature and is, consequently, in gross violation of Articles 53 and 59 of the Constitution. For the President to exercise a power that, in terms of Articles 55 and 59, should be reserved for the National Legislature, he was in violation of the principle of separation of powers and infringement on the rule of law. Further, by issuing an Order that purports to create new states and, at the same time, excludes the oversight function of the National Legislature; the President invalidated the functional and institutional integrity of the Legislature.

D- The Establishment Order is inconsistent with the provisions of the Peace Agreement

12- On the 26 August 2015, the President, on behalf of the Government of the Republic of South Sudan, signed the “Agreement on the Resolution of the Conflict in the Republic of South Sudan” (the Agreement). The National Legislature subsequently ratified the Agreement on 10 September 2015. The United Nations Security Council, within its Chapter 7 mandate, further endorsed this Agreement in its entirety.

13- The Agreement entered into force upon signature and subsequent ratification by the National Legislature. This fact makes the provisions of the Agreement binding on all arms and levels of government. In addition, the endorsement by the United Nations Security Council endows the Agreement with the binding force of international law, which precludes South Sudan from violating the provisions of the Agreement on the basis of its domestic laws. 14- According to Article 1.6 of the Agreement “Whereas power-sharing ratios in the conflict-affected states of Jonglei, Unity and Upper Nile as well as in the remaining seven (7) states shall be as reflected in Chapter I, Articles 15.2 1nd 15.3 of this Agreement.” Thus, the Agreement used the 10 states as provided for in Article 162 (1) of the Constitution, as the basis for power-sharing. However, order number 4 of the ‘Establishment Order' purports to unilaterally alter the number of the states from 10 to 28. Such a move is manifestly inconsistent with this provision of the Agreement.

For the author to claim that “the Order in and of itself did not eventuate in the establishment of 28 States in 2015” is contrary to the above-established fact. It is difficult to comprehend how the learned Lawyer could sanction a constitutional amendment meant to ‘legalize' a violation and calls that “the effecting instrument”. It is common sense that laws cannot be applied retroactively.

2- Is the cancellation of the 32 States a violation of the Peace Agreement?

We have shown that the provisions of the Establishment Order Number 36/2015 AD gave it the power of a self-standing and self-executing legal instrument (point 1-A-4 above). It stipulated that it cannot be amended except by another Order issued by the President. This is clear enough.

However, when agreement on the matter proved difficult during the Peace Talks, the Parties agreed to institute the Technical Boundary Committee (TBC) and the Independent Boundaries Commission (IBC) to deal with the matter. The Parties to the agreement committed themselves under Article 1.15.11 to abide by the recommendation of the IBC. If that recommendation was to adopt a number of states other than the 32, how could that have been a violation of the Agreement as the author categorically states?

The Peace Agreement was signed by five Parties and was not subjected to any referendum to seek the approval of the South Sudanese. It allows for amendment of its provisions. In fact, the two extensions of the Pre-Transitional Period were surely amendments. Such amendment was not anticipated when the Agreement was concluded and yet in the spirit of the Agreement, it was done. Therefore, the claim that doing away with the 32 States would be a violation of the Peace Agreement has no basis in fact.

3- The Districts at Independence

In a futile attempt to appeal to the nationalistic sentiments of the South Sudanese, the author proffered that the colonial districts only served “the vested colonial interest”. One may ask the author: what is “dehumanizing” in the colonial districts? As much as colonialism was detestable not all its legacy was unacceptable. One vested interest of the colonial power was to create stable administration in Sudan and by extension in Southern Sudan. The districts were established on a clear set of criteria that included among others population size, economic viability, geographical size, geographic continuity, tribal homogeneity, etc. The local government in Sudan had undergone major changes in 1960, 1971 and 1976 (for Southern Sudan) that changed the number and names of administrative units but all this was nothing more than sub-divisions within the original colonial districts. That these districts had clear boundaries far from being a fallacy is well-grounded. It is a contradiction for the author to claim that the British Colonial Government didn't determine the borders of the 23 districts but “only determine the boundaries of the various ethnic and sub-ethnic communities”. A district comprised one or a number of ethnic groups, therefore, if the boundaries of the latter are known, it follows that the district comprising those ethnic groups will have clear boundaries.

In fact, why the government and its apologists always lost the argument for the 32 States (including in the IBC) is the fact that they fail to produce coherent criteria for the establishment of those mini-states. The bogus claim that it was a popular demand is belied by the fact that no citizens were consulted prior to the announcement of the Establishment Order Number 36/2015 AD on National Television and Radio. It didn't help the government and its apologists that the announcement was preceded by playing martial music on these media that ran for hours, reminiscent of coups d'etat in Sudan. In this case, it was a coup against the Constitution and the Peace Agreement 2015.

Conclusion

The illegality and unconstitutionality of creating 28 and later 32 states are unquestionable. The Peace Agreement sought to resolve the issue of the number and boundaries of States in a particular manner through the IBC. The Parties committed themselves to abide by the recommendation of the IBC. Hence, the government and its apologists should desist from insisting that the option of 32 States is a sacred cow. Such a state of mind is inconsistent with the letter and spirit of the Peace Agreement.

January 1, 2020 (KHARTOUM) - Senior Sudanese officials travelled to West and North Darfur states to inspect the security situation and vowed to bring culprits to justice after the tribal clashes in El Geneina.

Over 41 people were killed as a result of tribal fighting between the Arab tribes and Massalit after the murder of a member of the Arab groups in El-Geneina after a scuffle near Crendingue camp for displaced Massalit tribe.

Also, the tribal violence comes as Darfur Arab groups, which were used by the former regime to quell the insurgency in the region, say they are targeted after the revolution by the tribes that had backed the rebellion from the Fur, Massalit and Zaghawa.

The leading member of the Sovereign Council Mohamed Hamdan Daglo and Prime Minister Abdallah Hamdok Wednesday were in El-Geneina to meet the tribal leaders and security officials.

After their arrival in El Geneina, Hamdok met a delegation from the Massalit tribe who handed him a complaint letter about the attacks carried out by the Arab tribes.

Following what, the delegation moved to the city as the Massalit held a sit-in on the road demanding to meet the prime minister.

The official Sudan News Agency did not refer to the protest but reported that the IDPs and Resistance Committees met the prime minister and urged the government to collect weapons and to restore the state authority and the rule of law.

The memorandum, according to SUNA, stressed that the attacks were not tribal.

"A group of criminals and outlaws took advantage of the situation and assaulted innocent people in their residences," said the memo, stressing they are the only beneficiary from these events without elaborating.

For his part, Hemetti during a meeting at the 15th military base in El-Geneina with the Massalit tribal leaders pledged to investigate the violence and bring the culprits to justice.

In a related development, the government dispatched a delegation including two members of the Sovereign Council Aicha Musa and Siddiq Tawer and the minister of Labour and Social Development Lina al-Sheikh to El-Fasher to meet tribal leaders North Darfur.

In press statements following the meeting, al-Tijani Mohamed Salih, the reporter of the Executive Office of the Native Administration in North Darfur State, told reporters that the government delegation had briefed them about El-Geneina events.

He added that they would visit the capital of West Darfur state "to put off the fire of sedition".

He noted that the situation is stable in North Darfur State but they need to visit also areas bordering the El-Geneina, such as Kabkabiya, a stronghold of Arab militias, "to calm the situation down," as he said.

(ST)