David Majok October 14th2011
In the aftermath of the decision to relocate the capital of the Republic of South Sudan to Ramciel from the current location, many rational and irrational critiques has been presented in either supporting or questioning the decision made by the President and the
Council of Ministers. Many of those who have argued either for or against the decision have elevated some valid points; however, those points have merely focused on issues of access to land and jurisdictional control, rather than focus on the constitutionality of the decision itself. The question that needs to be asked at this transitional period is this: Does the current president and government have the right mandate to decide on the future capital of South Sudan? If so, can it be made at the executive level, by by-passing the legally mandated body (the National Legislative Assembly and the Council of States?) from exercising their duty to officially pass into law the wishes of the people? And finally, at the current state of affairs in South Sudan, is this decision the right one, morally, and economically, given the dire straits our people are facing?
The last question on the list of questions posed here has been exhaustively addressed here and I will not surely delve into it; however the remaining questions are part of the crucial elements of the argument in trying to make sense of the decision to relocate the capital. As much of the chatter has been conflated either with conspiracy theories or factual errors, just to name few of the rationale presented.
The issue of constitutionality of the decision is very important at this juncture in our history. The presidency should have been mindful of its limitation, given its position as it relates to the transitional constitution. If the current government is transitional, then
it does not have the power to decide on this issue. The current transitional government as it is apparent from its name, is transitional by nature and cannot make any final decision on any large scale projects except that which deals with provision of basic services and national security. It cannot give itself a mandate that it does not have by deciding on issues such as the relocation of the capital.
First, the executive has not provided any justification, worthy of relocating the capital, with the exception of Bari Community refusal to allocate land for use to build vital institutions of national government of the new Republic. Second, the government has been silent on the official process of negotiating acquisition of land from Central Equatoria Government and their official position. Third, the government has failed to address the concerns of the Central Equatoria Government and people, legally, to warrant for honest
exchange of positions and compensation needed to allow for proper redress for those who will be affected or are affected by the increased presence of the National Institutions of Government. Forth, there has been no official offer from the National Government on
how to compensate the government of CES on the loss of infrastructure in Juba and facilitation of proper infrastructure in Yei, if the CEG decide to accept the relocation. And fifth, there has been very little sensitization by the national government on the concerns of the Bari Community and many who have been affected by the ordeal of the land acquisition process. As a responsible body, it is the National government’s duty to show respect to the local community, since it constitutionally granted them the rights to their land.
As a transitional government, it has the right to begin the process of consultation (whether through plebiscite or parliamentary hearing) to provide for wider participation and ownership of the decision, paving the way for a final decision to be made after the
transitional period. This will allay the current concern and also provide for a cooling off period, by addressing the issue of illegal land acquisition and establishment of legal and urban planning necessary for the relocation.
The second question is: whether the executive can make the decision to relocate the capital without referral of the proposal to the National Legislative Assembly and Council of States for a proper process, in reference to the transitional constitution? The constitution has been overtly conflicting on this issue, especially, when it is seen from the provision of article 92. In article 92, on the delegation of powers of subsidiary legislation, the executive gets a free hand to make laws by inference that says, “ the National Legislative or either of its two houses may, by law, delegate to the President, the Council of Ministers or any other public body, the power to make any subsidiary regulations, rule, orders or any other subsidiary instrument having the force of law…” However, this reference conflict with other instruments of the constitution that indicates in Article 55, section 3 subsections, b &
d, which provide a clear direction as to how national endeavours such as the relocation of capital shall be addressed. First, it must be initiated at the executive level and enacted into law by the national legislature; and second for the purpose of allocation of funds or resources to put into force the will of the people, in reference to the priorities of the government, the legislature authorizes the allocation of resources.
These elements of the constitution has been either ignored or in hast, the government want to absolve itself from the hard work of negotiating land tenure and postponed the inevitable by relocating the capital to Ramciel, hoping that it might not face the same hard questions that it is currently dealing with in Central Equatoria. The Transitional Constitution is clear about the land issue and has developed category of land tenure and
acquisition, wh ich states clearly that the government can expropriate land by using the right legal mechanism to compensate those whom their land has been acquired for common good.
With regard to the prioritization of government business, still, the national legislative assembly can redirect the priorities of the executive to the urgent problems that is facing the nation, instead of being by standers in this national debate.
In conclusion, in order to avoid misconstruing the priorities and acting on the provisions of the constitution, the executive must follow due process and refocus its effort in addressing the most urgent cases affecting our nation. The National Legislative Assembly and Council of States must not abdicate their responsibilities and assert their position on this issue. As well, the transitional period should not be used as a full mandate by the government to engage in lofty proposal that is devoid of real substance to the people of South Sudan at this nascent stage, where the demand for delivery of basic services is out-weighing a need for a world class capital.
David Majok can be reached at