AMENDMENTS MADE BY THE COUNCIL OF MINISTERS OF GOSS TO THE DRAFT TRANSITIONAL CONSTITUTION OF THE REPUBLIC OF SOUTH SUDAN 2011

The Draft Transitional Constitution of the Republic of South Sudan 2011 was tabled before the SSLA on Saturday the 7^th instant as "The Interim Constitution of Southern Sudan, 2005(Amendment) Bill 2011", after it was discussed in the Council of Ministers of GOSS.

Comparing the copy before the SSLA and the one you have in the net, one notes that the Council of Ministers made the following eleven amendments.

1.       The following text is to come immediately before the PREAMBLE:

In accordance with the provisions of Article 59(2)(b) read together with Article 85(1) of the Interim Constitution of Southern Sudan, the Southern Sudan Legislative Assembly, with the assent of the President of the Government of Southern Sudan, hereby enacts the following:

2.       A new sub-section (c) is added to Article 56(1) [Composition of the National Legislative Assembly]:

(c) such additional number of members appointed by the President not exceeding sixty-six.

3.       In Article 58(b), change "twenty" to "thirty". That is, the additional members of the Council of States to be appointed shall be thirty.

4.       Article 91 (Final Accounts) is rewritten to read:

91  (1)    The minister of Finance shall presented (sic) to the National Legislative Assembly

during the six months following the end of the financial year, the final accounts for all

revenue and expenditure as are set forth in that year, as well as expenditure

withdrawn from the reserve funds.

(2)   The Auditor general shall, in accordance with Article 186(8) herein, present his or her

report on such accounts to the National Legislative Assembly or the Council of States,

as the case may be.

5.       In Article 102 (Vacancy of the Office of the President), sub-section (2) is broken down into two sub-sections to read as follows:

(2)    If the office of the President of the Republic falls vacant, the post shall be assumed by the Vice President pending elections that shall be conducted by the National Elections Commission within sixty days from the date of occurrence of the vacancy.

(3)    Notwithstanding sub-Articles (2) above, if a vacancy occurs in respect of the office of the President of the Republic before the expiry of one year from the beginning of the Transitional Period, the post shall be assumed by the Vice President pending the filling of this position, within fourteen days from the date of the occurrence of the vacancy, by a nominee of the political party on whose ticket the President was elected.

6.       Articles 127 and 128 are interchanged.

7.       In the old Article 128, the number of the sub-sections repeats 2, so , the number of sub-sections in the new Article 127 are six.

8.       The original Article 159 (National Security Service) is broken down into two new Articles: 159 (Guiding Principles of National Security) and Article 160 (National Security) all under the title: NATIONAL SECURITY. The two new Articles read:

159   National security shall:

(a) Be subject to the authority of this Constitution and the law;

(b) Be subordinate to the civilian authority;

(c) Respect the will of the people, the rule of law, democracy, human rights and fundamental freedoms;

(d) Reflect the diversity of the people of South Sudan in its recruitment; and

(e) Be professional and its mandate shall focus on information gathering, analysis and

advice to the relevant authorities.

National Security Service

160.  (1) There shall be established a security service which shall be known as the National

Security Service.

(2)  (a)   The National Security Service shall have two operational organs, to be known as:

(i)   the Internal Security Bureau; and

(ii)  the General Intelligence Bureau.

(b)   Each of the operational organs shall be headed by a Director-General appointed

by the President with the approval of the Security Council upon the

recommendation of the Minister in charge.

(3)   The two operational organs shall be under a Minister in the Office of the President

who shall report to and be directly accountable to the President.

(4)    The National Security Service shall be charged with the internal and external

security of the Country and its people.

(5)    The structures, mission, mandate, functions of the Service, and the terms and

conditions of service of its personnel shall be prescribed by law.

[The changes are basically a fine tuning of the old one Article].

9.       Renumber the subsequent Articles accordingly.

10.   In the old Article 173, sub-section (4) is deleted, so that the new Article 174 has only four sub-sections.

[The sub-section deleted was more or less a repetition of sub-section (3)].

11.   The old Article 175 was repeated.  Hence, the renumbering now adds two to the numbers of the subsequent old Articles. Thus, the total number of the Articles is now 203.

Two of the eleven amendments are worth commenting on:

1.       The Council of Ministers has increased the number of persons to be appointed to the National Legislature (See points 2 and 3 above). Surely, this was meant to whet the appetite of the other political parties so that they do not make noise on the fundamental issues of the constitution. This dangling of the carrot seems to work and most of these parties are now behaving themselves so that they do not miss out when the appointments are later made by the SPLM. The same old tactics of the Jellaba!

2.      It is striking that the new constitution is tabled on the strength of Articles 59(2)(b) and 85(1) of ICSS 2005(see Point 1 above) which are applicable to normal enactment of bills. If the oft-quoted Article 208(7) were to be the basis of this constitution, as the SPLM always insists, then this constitution which is an amendment of ICSS 2005 (see the title of the new constitution above) should come under Article 206.  The Minister of Legal Affairs wants an amendment without the two-thirds majority required to do so. This is the only explanation to this attempt to go around clear constitutional provisions.