Sackings and appointments of Minsters by Presidential Decrees have been a regular occurrence during South Sudan’s prolonged transitional period. The recent sacking of the in-opposition Minister of Defence, Angelina Teny, has prompted questions about whether ministerial removals and appointments are compliant with the R-ARCSS peace agreement.
Jan Pospisil discusses the need for clearer provisions on these procedures, in order to reduce politicking in the pursuit of a transitional path for South Sudan’s political unsettlement.
South Sudan’s now prolonged transitional period – elections are to be held by December 2024 – is characterised by a strongly presidential system. The presidency consists not only of the main President, Salva Kiir from the governing Sudan People’s Liberation Movement – in government (SPLM-IG), and the First Vice President, Riek Machar, from the rivalling SPLM-IO (in opposition). There are four more Vice Presidents, representing different parties to the 2018 Revitalised Agreement on the Resolution of the Conflict in the Republic of South Sudan (R-ARCSS) that which aimed to resolve the national political conflict based on a complex power-sharing framework stretching through all levels and layers of government.
Sacking and appointment of Minsters by Presidential Decrees have been a regular occurrence in the transitional period, which has now reached its fourth year. Of particular controversy has been the recent sacking of the SPLM-IO-ticketed Minister of Defence, Angelina Teny, on 3 March 2023, not the least because Angelina also happens to be Riek Machar’s wife. In the same decree, Salva Kiir released Mahmoud Solomon, the SPLM-IG-ticketed Minister of Interior, and swapped the tickets for the Ministers of Defence and Interior between IO and IG. In an immediate statement after the sacking, Puok Both, the SPLM-IO spokesperson, declared the move as ‘unilateral and a new cycle of violating the Revitalized Agreement’.
Although there may have been background deals between the protagonists of these moves, the question of Ministerial removals and appointments and their compliance with R-ARCSS raises complex issues. The removal procedures for government officials are ambivalent and, sometimes, patchy. Any unilateral move to remove a Minister from her or his position is indisputably against the spirit of the agreement, which requests in para 1.9.1 that the ‘RTGoNU (the Revitalised Transitional Government of National Unity) is founded on the premise that there shall be collegial collaboration in decision-making and continuous consultations within the Presidency, between the President, the First Vice President, and the Four Vice Presidents’.
When it comes to compatibility with R-ARCSS of the concrete steps taken, however, a more detailed look into the provisions is necessary. It appears to be rather clear that the re-ticketing of Ministries during the transitional period requires consultations and agreements within the parties to the agreement. Para 1.12.1 states that ‘the Parties shall, during the Pre-Transitional Period, agree on the allocation of the Ministerial and Deputy Ministerial portfolios’. While it is not stated what should happen after the pre-transitional period – which ended on 22 February 2020 after the initial formation of the R-TGoNU – it appears teleologically self-evident that unilateral decisions to re-allocate are not in accordance with the logic of the agreement.
The procedure for sacking and appointing Ministers, however, is not laid out in clear language. In theory, this should be regulated by part 1.13 of R-ARCSS which deals with ‘Replacement and Removal Procedures’ of government officials. Yet, the subsequent paragraphs only deal with two cases: a Minister gets removed by her or his own party (1.13.1) or the Ministerial position falls vacant due to other reasons (1.13.2). In each case, the respective party to which the position is allocated has to nominate a replacement candidate (within 14 days), to be appointed and sworn in by the President.
While these stipulations do not touch the issue of sacking a Minister, they still contain one important and interesting line. According to para 1.13.2, ‘the replacement shall be nominated by the top leadership body of the party that first selected that Ministerial portfolio, as appointed at the commencement of the Transition’ (emphasis added). The latter term – ‘at the commencement of the Transition’ – supports above-mentioned para 1.12.1 in clearly suggesting that unilateral portfolio reallocations are a violation of the agreement.
While it is also clear that any candidate for a vacant Ministerial portfolio needs to be named by the respective party to the agreement, the rules regarding sacking are less obvious. There are two relevant provisions. Pointing to the powers of the President in section 1.6.2, the range of Presidential discretion is very wide. Para 126.96.36.199 states the President is responsible to ‘appoint and preside over the swearing into Office of the First Vice President, and the Vice Presidents, Ministers and Deputy Ministers, in accordance with the terms of this Agreement’. This stipulation indicates that the President has the right to reject a nominee.
Further, sections 1.9.2 and 1.9.3 list all areas where the President needs to consult (1.9.2) or look for agreement (1.9.3) with the Presidency as a whole. Para 188.8.131.52 refers to the ‘appointment of Constitutional and Judicial office holders including state governors’ as an area where consultation to come to a common agreement is required. Here, R-ARCSS needs to be read concurrently with the still valid Interim Constitution 2011 (amended 2013): R-ARCSS in-effect does not replace but amends the IC, in the case of conflict. According to R-ARCSS para 8.2, ‘in the event that the provisions of the TCRSS, 2011 (as amended) conflicts with the terms of this Agreement, the terms of this Agreement shall prevail’. Part 6 para 95 of the IC clearly lists Ministers as a Constitutional office holder. The whole Chapter Three of Part 6 of the Constitution deals with the Council of Ministers, however, also states in para 112 that ‘Ministers of the National Government shall be appointed and removed from office by the President’.
When interpreting Ministers as ‘Constitutional office holders’ as they indisputably are per para 184.108.40.206 of R-ARCSS, para 112 of the Transitional Constitution is overwritten by para 1.9.2 of R-ARCSS, and the removal of Ministers clearly requires consultation with the Presidency. Why this provision of R-ARCSS explicitly refers only to ‘state governors’ and to ministers only as ‘Constitutional office holders’ is nevertheless unhelpful. Clearer provisions regarding removal and reshuffling procedures, which were always likely to occur, would have been – and still would be – useful for reducing politicking and pursuing a transitional path in the complex South Sudanese formalised political unsettlement.
Dr Jan Pospisil is Associate Professor (Research) at the Centre for Trust, Peace and Social Relations at Coventry University. Learn more about Jan