Last week’s constitutional amendments pushed through by South Sudan’s President Salva Kiir, establishing 18 new states and appointing governors have cast a shadow over the peace agreement and the formation of a transitional government.

President Kiir had invoked Article 101 (f) of the Transitional Constitution that allows him to initiate constitutional amendments and legislation, enabling parliament to pass a raft of amendments on November 19. The amendments now pave the way for appointment of new governors for the 18 additional states.

Amended was Article 162, which states that South Sudan, comprises 10 states and the states boundaries and names shall not be altered except by a resolution of the Council of States approved by two-thirds of all members.

Also amended were Article 165, which provided that governors are to be elected by the people. The amendments now gives President Kiir powers to appoint new governors and entrench the additional 18 states into the Constitution.

However, other stakeholders such as Dr Cirino Hiteng of the former detainees argue that the amendments will not hold because the peace agreement is supreme and any amendment to the Constitution are to be undertaken by the National Constitutional Amendments Committee to be formed under the Transitional Government of National Unity.

READ: Peace deal in jeopardy over Kiir’s new states

Superior law

Chapter 7 (3) of the agreement says: “This Agreement shall take precedence over any national legislation, and in the event that the provisions of a national legislation conflict with the terms of this Agreement, this Agreement shall prevail”.

However, South Sudan deputy ambassador to Kenya James Morgan told The EastAfrican that the Transitional Constitution provides for the president to remove the governors only if there is a threat to security.

He argued that those to be appointed will be caretaker governors until the election is held within 30 months, when the life of the transitional government comes to an end.

Presidential legal adviser Lawrence Korbandy, told The EastAfrican that the creation of the 28 states was a political move to placate some regions, especially Greater Equatoria, which had threatened to rebel over allegedly having been short-changed in the Comprehensive Peace Agreement.

Mr Korbandy argued that the proposed administrative structures in the power-sharing arrangement under the Transitional Government of National Unity had cast aside Vice- President James Wani Igga who is from Equatorial but favoured Bahrel-Ghazal of President Kiir and Upper Nile where rebel leader Dr Riek Machar hails from.

“The geopolitics of South Sudan historically demands that any power- sharing, whether in good times or bad times, must take into account the three regions, but this element was is lacking in the current agreement,” said Mr Korbandy.

But there have been concerns that the Transitional Constitution gives the president too much power to sack governors elected by the people.

Among the governors who have been sacked so far are Taban Deng, the former governor of Unity who is currently the chief negotiator for the rebel movement, Tong Mayai (Lakes), Simon Kun (Upper Nile), Joseph Bakosoro (Western Equatoria), and Nyandeng Malek of Warrap State.

Information Minister and government spokesperson, Michael Makuei noted that the return of the advance team of Dr Machar is signal to South Sudanese that peace has come.