Sudan: CPA Power Sharing 2

3.2 The Government of Southern Sudan shall function in accordance with a Southern Sudan Constitution, which shall be drafted by an inclusive Southern Sudan Constitutional Drafting Committee and adopted by the Transitional Assembly of Southern Sudan by a two-thirds (2/3) majority of all members. It shall conform with the Interim National Constitution.

3.3 The powers of the Government of Southern Sudan shall be as set forth in Schedules B and D, read together with Schedules E and F, the Interim National Constitution, Southern Sudan Constitution, and the Peace Agreement.

3.4 A primary responsibility of the Government of Southern Sudan will be to act as an authority in respect of the States of Southern Sudan, to act as a link with the National Government and to ensure that the rights and interests of the people of Southern Sudan are safeguarded during the Interim Period.

3.5 Legislature of Southern Sudan

3.5.1 Pending the elections, the First Southern Sudan Assembly shall be an inclusive, constituent legislature comprised of:- 3.5.1.1 The SPLM shall be represented by Seventy Percent (70%);

3.5.1.2 The NCP shall be represented by Fifteen Percent (15%);

3.5.1.3 The other Southern political forces shall be represented by Fifteen Percent (15%).

3.5.2 The Southern Sudan Assembly shall, in accordance with the Constitution adopted by it, provide for the election of its Speaker and other office holders.

3.5.3 When enacting the Constitution of Southern Sudan, the Assembly of Southern Sudan shall be empowered to assign such powers as set forth in Schedules B and D, read together with Schedules E and F, to the Government of Southern Sudan.

3.5.4 The Southern Sudan Constitution shall make provision for the Assembly of Southern Sudan to be re-constituted through elections in accordance with the provisions herein related to the timing of general elections. The Constitution of the Southern Sudan shall also make provision for the election of the President and appointment of the Vice President of the Government of Southern Sudan. Such elections shall be in accordance with the provisions set forth by the National Electoral Commission specified in sub-paragraph 2.10.1.1 herein.

3.5.5 The Assembly of Southern Sudan may amend the Constitution of the Southern Sudan by a two-thirds ((2/3)) majority vote of all members.

3.5.6 Apart from applicable national legislation, legislative authority in Southern Sudan shall be vested in the Assembly of Southern Sudan. It shall establish its own offices, committees and rules of procedure. It shall elect a Speaker and Deputy Speaker and other officers at its first meeting.

3.6 The Southern Sudan Executive

3.6.1 An Executive Council of Ministers appointed by the President of the Government of Southern Sudan, in consultation with his/her Vice President and approved by the Assembly of Southern Sudan, shall be established in accordance with the Southern Sudan Constitution. The Executive Council of Ministers shall be accountable to the President of the Government of Southern Sudan and the Southern Sudan Assembly in the performance of their functions and may be removed by a motion supported by two-thirds ((2/3)) of all the members of the Southern Sudan Assembly.

3.6.2 The Executive Authority of Southern Sudan shall establish such independent institutions as the Peace Agreement, the Interim National Constitution and the Southern Sudan Constitution contemplate. It shall be empowered to establish such further commissions and institutions compatible with its powers as it deems necessary to promote the welfare of its people, good governance and justice.

3.6.3 The Government of Southern Sudan shall be established with due regard to the need for inclusiveness.

3.6.4 Prior to elections, the Government of Southern Sudan shall be allocated as follows:-

3.6.4.1 The SPLM shall be represented by Seventy Percent (70%);

3.6.4.2 The NCP shall be represented by Fifteen Percent (15%);

3.6.4.3 The other Southern political forces shall be represented by Fifteen Percent (15%).

3.6.5 The Government of Southern Sudan shall discharge its obligations and exercise such rights and powers in regard to administration, security, financial, and development issues as is set forth in the Southern Sudan Constitution, the Interim National Constitution, the Peace Agreement and any other agreement relating to the reconstruction and development of the Southern Sudan.

3.6.6 (a) Should the post of the President of GOSS fall vacant, and pending the nomination and swearing in of the new President, the functions of the President shall be assumed by the Vice President of GOSS;

(b) Should the post of the President of GOSS fall vacant in the period prior to elections, the Office of the President of GOSS shall be filled by a nominee of the SPLM within two (2) weeks;

(c) Should the post of the President fall vacant in the period after the elections, the post shall be filled through elections which shall be held within sixty (60) days.

3.7 The Judiciary of Southern Sudan

3.7.1 There shall be at the Southern Sudan Level:-

3.7.1.1 A Supreme Court of Southern Sudan;

3.7.1.2 Courts of Appeal; and

3.7.1.3 Any such other courts or tribunals as deemed necessary to be established in accordance with the Southern Sudan Constitution and the law.

3.7.2 The Constitution of Southern Sudan shall provide for a Supreme Court for Southern Sudan which shall be the highest court in the South and to which appeals may lie from Southern state courts or other Courts of Southern Sudan on matters brought under or relating to Southern state, Southern Sudan or National law, as may be determined by the Constitution of Southern Sudan.

3.7.3 The Southern Sudan Supreme Court shall:-

3.7.3.1 Be the court of final judicial instance in respect of any litigation or prosecution under Southern State or Southern Sudan law, including statutory and customary law, save that any decisions arising under National Laws shall be subject to review and decision by the National Supreme Court;

3.7.3.2 Have original jurisdiction to decide on disputes that arise under the Constitution of Southern Sudan and the constitutions of Southern Sudan states at the instance of individuals, juridical entities or of government;

3.7.3.3 Adjudicate on the constitutionality of laws and set aside or strike down laws or provisions of laws that contradict the Constitution of Southern Sudan or the constitutions of Southern Sudan states;

3.7.3.4 Be a court of review and cassation in respect of any criminal or civil matter arising out or under Southern Sudan Laws;

3.7.3.5 Have criminal jurisdiction over the President and Vice President of the Government of Southern Sudan and the Speaker of Southern Sudan Legislature;

3.7.3.6 Review death sentences imposed by Southern Sudan courts in respect of matters arising out of or under Southern Sudan Laws;

3.7.3.7 Have such other jurisdictions as determined by Southern Sudan Constitution, the Peace Agreement and the Law.

3.7.4 Judges of the Courts of Southern Sudan shall perform their functions without political interference, shall be independent, and shall administer the law without fear or favour. The provisions of the Southern Sudan Constitution and the Law shall protect their independence.

3.7.5 Without prejudice to Sub-paragraph 2.11.4.4, the Legislature of Southern Sudan shall provide for appointments, terms of service and dismissal of Southern Sudan appointed Judges.

PART IV

4. Institutions at the State level

4.1 The Institutions at the State level shall consist of:-

4.1.1 The State Legislature;

4.1.2 The State Executive; and

4.1.3 The State Judiciary.

4.2 There shall be legislative, executive, and judicial institutions at state level which shall function in accordance with this Agreement, the Interim National Constitution and, in respect of the states of Southern Sudan, also with the Constitution of Southern Sudan.

4.3 Local Government is an important level of Government and its election, organization and proper functioning shall be the responsibility of the states, in accordance with the relevant state constitution.

4.4 The State Legislature

4.4.1 There shall be a State Legislature comprised of members elected in accordance with the electoral provisions herein and as set forth by the National Electoral Commission referred to in sub-paragraph 2.10.1.1 herein.

4.4.2 Pending the elections referred to in sub-article 4.4.1 herein, the composition of the state legislatures shall be comprised as follows:-

4.4.2.1. The NCP is to hold Seventy Percent (70%) in the Northern states, and the SPLM Seventy Percent (70%) in the Southern states;

4.4.2.2. The remaining Thirty Percent (30%) in the Northern and the Southern states shall be allocated as follows:-

(i) Ten Percent (10%) in the Southern states to be filled by the NCP;

(ii) Ten Percent (10%) in the Northern states to be filled by the SPLM; and

(iii) Twenty Percent (20%) in the Northern and Southern states to be filled by representatives of other Northern and Southern political forces respectively.

4.4.3. The elections referred to in sub-article 4.4.1. herein shall take place on the same date as the elections for the National Assembly referred to in Section 1.8.3.

4.4.4. The state legislatures shall prepare and adopt state constitutions provided that they are in conformity with the National Constitution, the Peace Agreement, and for Southern States, also in conformity with the Constitution of Southern Sudan.

4.4.5. The State Legislature shall have law-making competency in respect of the functional areas listed in Schedules C and D, read together with Schedules E and F.

4.4.6. Members of the State Legislature and the State Council of Ministers, including the Governor, shall have such immunities as are provided by law.

4.4.7. The State Legislature shall decide its own rules, procedures, and committees, and elect its Speaker and other officers.

4.5 The State Executive

4.5.1 Prior to elections the state executives shall be allocated as follows:-

4.5.1.1 The NCP is to hold Seventy Percent (70%) in the Northern states, and the SPLM Seventy Percent (70%) in the Southern states;

4.5.1.2 The remaining Thirty Percent (30%) in the Northern and the Southern states shall be allocated as follows:-

(i) Ten Percent (10%) in the Southern states to be filled by the NCP;

(ii) Ten Percent (10%) in the Northern states to be filled by the SPLM; and

(iii) Twenty Percent (20%) in the Northern and Southern states to be filled by representatives of other Northern and Southern political forces, respectively.

4.5.2 As part of the Ten Percent (10%) share of the NCP in Southern states the two Parties agreed as follows:-

(i) The Governor of one Southern State shall be a nominee of the NCP;

(ii) One Deputy Governor in a different Southern State shall be a nominee of the NCP.

4.5.3 The States’ Council of Ministers shall be appointed by the Governor in accordance with the State Constitution, having regard to the need for inclusiveness. The State Ministers shall be accountable to the Governor and the State Legislature in the performance of their functions and may be removed by the Governor on a motion supported by two-thirds ((2/3)) of all the members of the State Legislature.

4.5.4 The Governor shall, together with the States’ Council of Ministers appointed by him/her, exercise the executive powers of the state which shall be in respect of the functional areas listed in Schedules C and D, read together with Schedules E and F, and such other executive competencies as are conferred upon the State by the Interim National Constitution, the Southern Sudan Constitutions, the State Constitutions, and the Peace Agreement.

4.5.5 State Governors must sign any law duly approved by the State Legislature, failing which, after thirty (30) days it shall be deemed to have been signed into law by the State Governor. Where the State Governor withholds his/her signature, he/she must present reasons for his/her refusal to so sign when re-introducing the bill to the State Legislature within the 30-day period stated within. The Bill shall become law if the State Legislature again passes the bill by two-thirds ( (2/3)) majority of all the members and the assent of the Governor shall not be required.

4.6 State Judicial Institutions

4.6.1 The State Constitutions shall provide for the establishment of such state courts by the State Judiciary as necessary.

4.6.2 State legislation must provide for:-

4.6.2.1 The appointment and dismissal of State-appointed judges (lay magistrates); and

4.6.2.2 Guarantees of the independence and impartiality of the judiciary and ensure that judges shall not be subject to political or other interference.

4.6.3 State Courts shall have civil and criminal jurisdiction in respect of State, Southern Sudan, and National Laws, save that a right of appeal shall lie as provided in this Agreement.

4.6.4 Notwithstanding sub-paragraph 4.6.3, the National Legislature shall determine the civil and criminal procedures to be followed in respect of litigation or prosecution under National laws in accordance with the Interim National Constitution.

4.6.5 The structures and powers of the Courts of the States of Southern Sudan shall be subject to the provisions of this Agreement and the Constitution of Southern Sudan.

PART V: SCHEDULES

Schedule A: National Powers

Exclusive competencies (Legislative and Executive Powers) of the National Government.

1. National Defense and National Security and Protection of the National Borders;

2. Foreign Affairs and International Representation;

3. Nationality and Naturalization;

4. Passports and Visas;

5. Immigration and Aliens;

6. Currency, Coinage and Exchange Control;

7. Constitutional Court and such National Courts responsible for enforcing or applying National laws;

8. National Police (including Criminal Investigation Department – CID, Coordination of International, Regional and bilateral Criminal Matters, and Standards and Regulations including the standards for training the police in the National Capital);

9. The fixing of and providing for salaries and allowances of civil and other officers of the National Government;

10. Postal Services;

11. Civil Aviation;

12. Maritime shipment;

13. Beacons;

14. Navigation and Shipment;

15. National Lands and National natural resources;

16. Central Bank, the Incorporation of National banks and issuing of paper money;

17. Bills of Exchange and Promissory Notes;

18. Weights, Measures and Standards, Dates and Standards of Time;

19. Meteorology;

20. Establishment and Maintenance of National Prisons;

21. National Institutions as envisaged under the Peace Agreement or as set forth in the Interim National Constitution;

22. Customs, Excise and Export Duties;

23. Intellectual Property Rights, including Patents and Copyright;

24. National Flag, National Emblem and National Anthem;

25. Signing of International Treaties on behalf of the Republic of Sudan;

26. National Debt and borrowing on public credit;

27. National Census, National Surveys and National Statistics;

28. National States of Emergency;

29. International and Inter-State Transport, including roads, airports, waterways, harbours and railways;

30. National Public Utilities;

31. National Museums and National Heritage Sites;

32. National Economic Policy and Planning;

33. Nile Water Commission, the management of the Nile Waters, transboundary waters and disputes arising from the management of interstate waters between Northern states and any dispute between Northern and Southern states;

34. National information, publications, telecommunications regulations;

35. National Taxation and National Revenue Raising;

36. National Budget;

37. Laws providing for National elections and their supervision by the Electoral Commission;

38. Issuance of National ID Card.

Schedule B: Powers of the Government of Southern Sudan

The exclusive legislative and executive powers of the Government of Southern Sudan shall be:

1. The adoption and amendment of the Constitution of the Government of Southern Sudan (subject to compliance with the Interim National Constitution);

2. Police, Prisons and Wildlife Services;

3. Security and military forces during the Interim Period (subject to Agreement on Security Arrangements);

4. Legislation relating to the Government of Southern Sudan structures for the delivery of services at all levels of Government of Southern Sudan;

5. Borrowing of money on the sole credit of the Government of Southern Sudan within the national macro-economic policy;

6. Planning for Southern Sudan Government services including health, education, and welfare, etc;

7. The appointment, tenure and payment of Government of Southern Sudan (GOSS) officers and civil servants;

8. Development of financial resources for the Government of Southern Sudan;

9. The co-ordination of Southern Sudan services or the establishment of minimum Southern Sudan standards or the establishment of Southern Sudan uniform norms in respect of any matter or service referred to in Schedule C or Schedule D, read together with Schedule E, with the exception of Item 1 of Schedule C, including but not limited to, education, health, welfare, police (without prejudice to the National Standards and Regulations), prisons, state public services, such authority over civil and criminal laws and judicial institutions as is specified in the Schedules, lands, reformatories, personal law, intra-state business, commerce and trade, tourism, environment, agriculture, disaster intervention, fire and medical emergency services, commercial regulation, provision of electricity, water and waste management services, local Government, animal control and veterinary services, consumer protection, and any other matters referred to in the above Schedules;

10. Any power that a State or the National Government requests it to exercise on its behalf, subject to the agreement of the Government of Southern Sudan or that for reasons of efficiency the Government of Southern Sudan itself requests to exercise in Southern Sudan and that other level agrees;

11. Referenda in Southern Sudan on matters affecting Southern Sudan as a whole within the competencies of Southern Sudan Government;

12. Taxation and revenue raising in Southern Sudan as a whole;

13. Southern Sudan Budget, subject to the agreement on Wealth Sharing;

14. GOSS Public utilities;

15. GOSS flag, emblem;

16. Reconstruction and development of the Southern Sudan as a whole, subject to the provisions of the Wealth Sharing Agreement;

17. GOSS information, publications, media and telecommunications utilities;

18. Rehabilitation and benefits to disabled war veterans, orphans, widows and care for the dependents of deceased war fallen heroes;

19. Any matter relating to an item referred to in schedule D that cannot be dealt with effectively by a single State and requires GOSS legislation or intervention including, but not limited to the following:-

19.1. Matters relating to businesses, trade licenses and conditions of operation;

19.2. Natural resources and forestry;

19.3. Town and rural planning;

19.4 Disputes arising from the management of interstate waters strictly within Southern Sudan;

19.5. Fire fighting and ambulance services;

19.6. GOSS reformatory institutions;

19.7. Firearm licenses within Southern Sudan; and 19.8. GOSS recreation and sports.

20. Such matters relating to taxation, royalties and economic planning as is specified in the Agreement on Wealth Sharing as a matter or matters in regard to which the Government of Southern Sudan is accorded exclusive authority;

21. Southern Sudan census and statistics within the competence of the Southern Sudan Government;

22. Issuance of identity cards within Southern Sudan, driving licenses and other appropriate documentation.

Schedule C: Powers of States

Exclusive executive and legislative competencies of the individual States of Sudan shall be as set out hereunder:-

1. The Constitution of the State, subject to compliance with the National Constitution, and, as relevant, the Constitution of Southern Sudan;

2. State Police, prisons;

3. Local Government;

4. State information, state publications and state media;

5. Social Welfare including State pensions;

6. The Civil Service at the State level;

7. The State Judiciary and administration of justice at State level including maintenance and organization of State Courts, and subject to national norms and standards, civil and criminal procedure;

8. State Land and State Natural Resources;

9. Cultural matters within the State;

10. Regulation of religious matters subject to the National Constitution and the Peace Agreement;

11. Internal and external borrowing of money on the sole credit of the State within the National macro-economic framework;

12. The establishment, tenure, appointment, and payment of State officers;

13. The management, lease and utilization of lands belonging to the State;

14. The establishment, maintenance and management of reformatory institutions;

15. The establishment, regulation, and provision of health care, including hospitals and other health institutions;

16. Regulation of businesses, trade licenses, working conditions, hours, and holidays within the State;

17. Local works and undertakings;

18. Registration of marriage, divorce, inheritance, births, deaths, adoption and affiliations;

19. Enforcement of State laws;

20. Statutes enacted under the Penal Law power, save for the penalization for the breach of National laws relating to the national competencies;

21. The development, conservation and management of State natural resources and State forestry resources;

22. Primary and secondary schools and education administration in regard thereto;

23. Laws in relation to Agriculture within the State;

24. Airstrips other than international and national airports within civil aviation regulations;

25. Intrastate public transport and roads;

26. Population policy and family planning;

27. Pollution control;

28. State statistics, and State surveys;

29. State referenda;

30. Charities and endowment;

31. Quarrying regulations, (subject to the Agreement on Wealth Sharing);

32. Town and rural planning;

33. State cultural and heritage sites, State libraries, State museums, and other historical sites;

34. Traditional and customary law;

35. State finances;

36. State irrigation and embankments;

37. State Budget;

38. State archives, antiquities, and monuments;

39. Direct and indirect taxation within the State in order to raise revenue for the State;

40. State public utilities;

41. Vehicle licensing;

42. Fire fighting and ambulance services;

43. Recreation and sport within the State;

44. Firearms Licenses;

45. Flag and emblem.

Schedule D: Concurrent Powers

The National Government, the Government of Southern Sudan and State Governments, shall have legislative and executive competencies on any of the matters listed below during the Interim Period:-

1. Economic and Social Development in Southern Sudan;

2. Legal and other professions and their associations;

3. Tertiary education, education policy and scientific research;

4. Health policy;

5. Urban development, planning and housing;

6. Trade, commerce, Industry and industrial development;

7. Delivery of public services;

8. Banking and insurance;

9. Bankruptcy and insolvency;

10. Manufacturing licenses;

11. Airports only with respect to the GOSS in accordance with Civil Aviation standards and regulations;

12. River transport;

13. Disaster preparedness, management and relief and epidemics control;

14. Traffic regulations;

15. Electricity generation and water and waste management;

16. Information, Publications, Media, Broadcasting and Telecommunications;

17. Environmental management, conservation and protection;

18. Relief, Repatriation, Resettlement, Rehabilitation and Reconstruction;

19. Without prejudice to the National Regulation, and in the case of Southern States, the regulation of Southern Sudan Government, the initiation, negotiation and conclusion of International and Regional Agreements on culture, sports, trade, investment, credit, loans, grants and technical assistance with foreign governments and foreign non-governmental organizations;

20. Financial and economic policies and planning;

21. Women’s empowerment;

22. Gender policy;

23. Animal and livestock control, animal diseases, pastures and veterinary services;

24. Consumer safety and protection;

25. Residual powers, subject to schedule E;

26. Mother, Child protection and care;

27. Water Resources other than interstate waters;

28. Notwithstanding Schedules A, B and C, such matters relating to taxation, royalties and economic planning as specified in the Agreement on Wealth Sharing;

29. Southern Sudan and State Courts responsible for enforcing or applying National laws;

30. Such matters relating to taxation, royalties and economic planning as is specified in the Agreement on Wealth Sharing as a matter or matters in regard to which the Government of Southern Sudan is accorded concurrent authority;

31. Human and animal drug quality control.

Schedule E: Residual Powers

The residual powers shall be dealt with according to its nature (e.g., if the power pertains to a national matter, requires a national standard, or is a matter which cannot be regulated by a single state, it shall be exercised by the National Government. If the power pertains to a matter that is usually exercised by the state or local government, it shall be exercised by the state). Where a matter is susceptible to Southern Sudan regulation, in respect of the states of Southern Sudan, it shall be exercised by the Government of Southern Sudan.

Schedule F: Resolution of Conflicts in Respect of Concurrent Powers:

If there is a contradiction between the provisions of Southern Sudan law and/or a State law and/or a National law, on the matters referred in Schedule D, the law of the level of government which shall prevail shall be that which most effectively deals with the subject matter of the law, having regard to:-

1. The need to recognize the sovereignty of the Nation while accommodating the autonomy of Southern Sudan or of the States;

2. Whether there is a need for National or Southern Sudan norms and standards;

3. The principle of subsidiarity;

4. The need to promote the welfare of the people and to protect each person’s human rights and fundamental freedoms.