Legality and Illegality Of Replacing Machar


The First Vice President of the Republic of South Sudan and the Commander –in- Chief of the SPLA – IO has not been seen in public since his resident was allegedly bombarded during the conflict that took place in Juba, the Capital city of South Sudan from 5 – 11 July 2016. His mysterious disappearance has created a political vacuum and threatens the stability and viability of the Transitional Government of National Unity (TGoNU). The Agreement that established the TGoNU provides for a collegial Presidency wherein vital decisions are taken by consensus through consultation. As a result, his prolonged absence could paralyse the functions of the Government.

To fill the vacuum left by the disappearance of the 1st Vice President, a group of IO members in Juba met and purported to nominate Taban Deng Gai as the 1st Vice President and by implication the Chairman and C-in-C of the SPLA –IO. This nomination has received mixed reactions of commendation and condemnation. For those who praise the move, the decision is a legal, political and pragmatic imperative. For those who condemn the action, it is an attempted coup, opportunistic and dangerous precedent and a possible trigger for the insecurity and instability of the country.

I will not comment on the underlying political issues that might be implicated by the decision to attempt to replace the 1st Vice President. I will stick to the legal issues arising from the decision. Articles 5 and 6 of the Agreement on the Resolution of the Conflict in South Sudan (ARCISS) is the succession clause and the legal basis on which to judge the legality or otherwise of the replacement of the 1st Vice President.

Article 6 of ARCISS provides for the reasons as well as the procedure for the removal and replacement of the 1st Vice President. The post of the 1st Vice President could fall vacant ‘for any reason’ according to article 6.4 of the ARCISS. This is wide enough to include kidnapping, mysterious disappearance, total disability or indeed any material fact that puts the holder of this office in a position to be unable to discharge the powers and functions of the office of the 1stVice President.

As to the procedure for replacement, the person to replace the 1st Vice President is to be nominated by the ‘top leadership body of the South Sudan Armed Opposition as at the signing of this Agreement.’ According to papers submitted by the SPLA –IO as at the signing of the Agreement, its top leadership body consisted of the Political Bureau and the National Liberation Council. The practice of the SPLA –IO during the negotiation supports this conclusion. This is so because, during the negotiation, contentious issues arising from the negotiation was first submitted to the Political Bureau and then ratified by the National Liberation Council. Thus, according to the ARCISS and the practice of the SPLA –IO, in order to legally replace the 1st Vice President, the top leadership body, and not persons, of the IO should declare that post vacant and nominate someone to replace him or her.

A temporary replacement of the 1st Vice President can only be directed by him or her, according to article 6.5 of the ARCISS.

Therefore, except there is evidence that the 1st Vice President is alive and exercising effective leadership, his mysterious disappearance could provide a ground for that the office has fallen vacant and for replacing him in the public interest and security of the country. However, unless there is sufficient evidence to the effect that the requisite quorum for both the National Liberation Council and the Political Bureau of the SPLA –IO met in Juba to declare the office vacant and nominate replacement, such a decision lacks legal basis and, therefore, null and void to the extent of its inconsistency with the ARCISS.

Since one cannot build something on nothing, appointing a replacement to the office of the 1st Vice President that lacks legal basis renders any subsequent decision or action by the incumbent of no effect.

By Dr. Remember Miamingi-Gurton

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