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On 2nd October, President Kiir ordered, by presidential decree, the establishment of 28 federal states in South Sudan, increasing the number from 10.
The announcement is a complete reversal of Kiir’s original standpoint. During the recent peace process, Kiir rejected the opposition’s proposals for the implementation of 21 federal states. The sudden U-turn has, understandably, been met with confusion and criticism. The opposition leader, Riek Machar, denounced the move, as has the EU commission, The Troika, and political groups within South Sudan. Critics suggest that the decree has not fully realised the impact of decentralisation on the current fragile situation in South Sudan. Furthermore, the degree has ignored economic considerations, and illegally sidestepped the constitution and recent peace agreement.
With the complexities, difficulties and opposition that such a unilateral announcement would face, it makes the outsider wonder why Kiir reversed his initial decision. Moreover, why has he done this now?
Will increased decentralisation reduce conflict?
Despite the criticism, Kiir’s decree does have support as calls for federalism in South Sudan have been consistently endorsed. Due to the myriad of ethnic and tribal groups, federalism has been popular in the south since Sudan’s independence in the 1950s. Those who advocate the move suggest that it would reduce the domination of political decision-making by Juba, increase participatory democracy and assist in maintaining security across the regions. Indeed, an increasingly decentralised federal system in South Sudan may help alleviate some of the ethnic tensions and conflicts that have scared its recent history.
However, some commentators suggest that the order, instead of encouraging peace, will deepen dividing lines between different ethnic groups. The original proposal in the peace process was for 21 states to be created according to colonial maps. The new proposal does not use this layout. An article by the Sudan Tribune argued that this “will likely create further crisis in the determination of new boundaries from scratch”. Another stated that discussing the new boundaries “would also cause serious conflicts” between the states.
The prediction of further conflict between these new states has brought reservations against federalism in South Sudan. Moreover, the borders of the future states are loosely based on the locations of the different ethnic groups in the country. A report, published by the Sudd Institute, suggested that the states could act as “ethnic enclaves, discouraging South Sudanese from interacting with and embracing each other”. They go on to convey that due to South Sudan’s unstable situation, it is instead a priority to concentrate on social cohesion rather than splitting land and people into different sections.
The issue of increased federalism is a complex longstanding issue that needs systematic democratic discussion between the South Sudanese people. Even Kiir himself is said to have “acknowledged that the new states will create difficulties or conflicts in determining their respective boundaries”. But Kiir’s unilateral announcement removes the chance for meaningful debate about federalism, and the implementation of 28 states in the midst of civil conflict.
Is Kiir’s proposal economically viable?
Due to the ongoing conflict, as well as a serious drop in oil prices, the South Sudanese economy is arguably in no position to be preparing for spending projects. The African Development Bank Group suggests that without a complete end to the conflict and the improvement of worldwide oil prices, South Sudan’s economy will continue to be devastated and face “long-term economic troubles”.
The creation of new states means the creation of new legislatures and executives. The amount of resources and organisation to build these institutions will need considerable funding. The order states that funding will be devolved to the 28 states. Kiir has not made it clear where the money needed for the governmental development and an entire new workforce will come from. With these considerations, along with the current economic climate, the project does not appear to be economically viable.
Is Kiir’s proposal legal?
Besides the economic constraints and the tricky debate of increased federalism, the accusation of a violation of the constitution is perhaps the most serious issue of Kiir’s announcement. The national alliance of major political parties stated that “there is no article in the constitution which gives the president such powers”. Looking through the 2011 transitional constitution of South Sudan, there is no evident indication that Kiir has the legal right to establish 28 federal states.
The President has the power to “initiate constitutional amendments and legislation and assent to and sign into law bills passed by the National Legislature” (101.f). The President can only bypass the legislature with their decree power, which can only be used “on an urgent matter” (86.1) when the legislature is not in session. Crucially the constitution states that;
“the President shall not make any provisional order on matters affecting the… decentralized system of government” (86. 5)
The constitution does not say that the President can even initiate legislation on the decentralized system of government. This is instead a power given to the Council of States. It is up to them to “pass such legislation with two-thirds majority of all representatives” (59. a). The report by the Sudd institute conveys that for the order to be legal it “should have started” with the Council of States.
Not only does the order breach the constitution but also the recent peace agreement to stop the conflict that was signed by both Machar and Kiir. The peace deal was based on the system of 10 power sharing states. Any change to this would thus require renegotiations and a change in the peace agreement.
The unilateral order by Kiir is evidently illegal, and has serious economic implications. These serious obstacles to the project bring into focus the question; why now?
Order 9.1, within the ‘establishment order for the creation of 28 states’, declares that “the President shall appoint the state governors and state legislative assembly”. In the interim before the states are fully operational, the decision for Kiir to place who he wants in control of assemblies is decisive. It is arguably an opportunity for Kiir to widen internal support within the government structure and gain further influence in the face of the opposition.
It is a political move that will also seek to increase popular support. Although the opposition initially sought for the creation of more states, Kiir has taken the initiative and made it his own. The concerns surrounding the announcement also forced the opposition to oppose the increased number of states. This may not play well considering the historical support for the idea, and could portray Kiir as a strong advocate for federalism, despite his initial rejection. In fact, with federalism being nationally popular, this was a potential opportunity for opposing sides to agree on something together, bridging the gap between them.
Lastly, the bypassing of the constitution is perhaps not only a show of power but a worrying consideration for the future of the South Sudanese rule of law. The temporary nature of the current constitution has caused some to express concerns. An article written in 2012, published by the ‘Enough’ project, suggests that without a permanent constitution, abuses of power by the President, or others, could be exercised. It seems this prediction came true.
If a violation of the law is possible without conviction, there are opportunities for further constitutional abuses. This potential is deeply worrying for the future of South Sudan’s political stability and severely undermines its democratic development.
Disclaimer: This blog is a space for discussion and personal reflection. Any opinions expressed within the blog are those of the author and are not necessarily held by HART. Individual authors are responsible for the accuracy of statements made within the blog.