John Luk Jok’s Document

The Transitional Constitution of the Republic of South Sudan, 2011, is a document that shall haunt H.E. Justice John Luk Jok all his life, because he knows that it is a bad document that never gives southern people hope or aspirations.

As a lawyer he is aware of the so many fenestrations that a common man can easily spot with out strain. It is not true that Justice John Luk is not aware about the worthlessness of the document and its future negative connotations on the new state and the people. People begin to feel that Luk Jok has turned into a gold digger and wants to secure his position at the expense of the nation by appeasing Salva Kiir and his clique and giving an iron rod to the Emperor to torture the poor people of the south who never enjoyed peace dividends since the signing of CPA in 2005. The other theory is that Luk Jok wants to punish the people of the south for failing him in April elections, and had vowed not to try any elections in future so why would he care. The third theory could be that Luk Jok wants to come closer to Salva and the clique, to be the V/P for instance.

How would a lawyer-turned politician establish a dictatorship by making a law that takes away the rights of the people who vote for legislative assembly and for an elected governor to be dismissed and remove by a president?. Luk Jok should have aspired to use Indian, US, South Africa, constitutions as references as these are the most democratic documents. South Sudan had been known for democratic practices even during the time of Jaafer Nimeri. How come in this century Luk Jok would condone a law that makes citizens second class after voting overwhelmingly for independence in 2011?. It is not so hard to go down in history as some body, the easiest of all is the infamy because this demands no efforts. But to be famous you need to work hard and achieve what others had not. H.E. Justice Luk Jok will be remembered as the Law minister who established a totalitarian system in an African country call South Sudan.

Even the GOSS council of ministers seem not to have been satisfied by the Luk Jok’s document, and had to make some cosmetic changes. However, what is serious about this document, is the dubious attitude attached to it’s presentation to GOSS and SSLA.

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 which was circulated first, it is noted that the Council of Ministers made the following eleven amendments. 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:

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.

Like Dr. Lam puts it, these cosmetic changes especially where there is tendency to increase numbers as SSLA is like “dangling carrot” which will deter some parties from sustaining the position for demanding review of constitution.

“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” Dr. Lam

These amendments are not the needed changes to the constitution, although they are important, yet articles which make this constitution totalitarian have not been touched by the GOSS Cabinet. These ministers had not made appropriate needed amendments for the fear of disappointing the king and members of the king’s court in Juba.

The remaining main changes should be firmly addressed by the SSLA. Not all of the MPs will come back to the parliament, but they should leave tangible changes that will for the future generations by establishing a strong law that will keep people together and make each citizen feel like a free man in a free country. The articles which need amendments are the ones which reduce the power of the president from being a dictator, by not being allowed to dismiss a governor or dissolving a state assembly. In short; is getting back the south to recommendations of south-south dialogue and forging a way forward to negotiate with military rebel groups in order to reach an amicable compromise before the announcement of the new state, so as not to make a fail state.