HL Hart in South Sudan: the war-torn secondary rule of recognition
To what extent does an authoritarian regime still need to justify its course by reference to law? Hart’s classic distinction between primary& secondary legal rules offers a useful tool for analyzing politico-legal contestations in (post-)conflict societies
On Friday evening 2 October, President Salva Kiir of the Republic of South Sudan took to television channel SSTV to proclaim that South Sudan’s 10 states would be divided into 28 states. Even though decentralisation and federalism had been long-standing desires of the opposition, ‘Establishment Order 36/2015 AD’ came as something of a shock to allies and adversaries and was immediately criticised on both substantive and procedural grounds.
Substantively, President Kiir’s Order has been criticised for threatening the peace agreement, risking ethnic division, for being financially unfeasible, and for being the “right move at the wrong time.” These concerns merit serious discussion in and of themselves. But an often overlooked, yet hopeful and surprising aspect of the domestic debates about the Order is the attention for procedures and laws.
Procedurally, the Order was criticized for having come about in an undemocratic manner and for violating the Transitional Constitution – which stipulates that South Sudan is composed of 10 states (Article 162: 1). Pre-empting such critique, Justice Minister Paulino Wanawilla Unango had stressed that the Order required no parliamentary decision and that the President’s decree was in line with his powers as stipulated in Article 101 (f) of the TC. Dissatisfied with this explanation, one opposition group took the case to the Supreme Court to invalidate the Order.
It is here that we can perhaps draw lessons from Hart who makes a distinction between primary and secondary legal rules. Primary rules ‘impose duties’ and “concern physical movement or changes” and secondary rules ‘confer powers’ and lead to the creation of variation of duties or obligations” (1961: 81). These secondary rules are the rules of the system, and govern its modes of change, adjudication and recognition. Hart explains that legal rules can be internally accepted either because they are just, or because people accept the authority of the legal system that produced and enforces the rules. For legal rules to be accepted as valid internally, Hart contends, they must be in line with an agreed-upon ‘ultimate rule of recognition’ that stems from convention among officials.
Problematically, in South Sudan it seems that both primary and secondary rules of law are disputed. The secondary rule of recognition is itself a subject of debate and so it is contested in what manner legitimate legislation can be created. This dispute, I would argue, is at its core one over the legitimacy of the division and exercise of power through state organs. These procedural debates are interesting because they suggest that the parties involved feel that there is something to be gained in the debate. What is at stake is not just this Establishment Order, but also the belief in the ‘ultimate rule of recognition’ and in the legal system at large.
Even if the Order is controversial for all the right reasons, it has brought about a fundamental domestic debate about the secondary rules which guide its law-making. The reference that competing factions make to laws and legal norms, is more than just rhetoric: President Kiir announced the Establishment Order on 2 October, but 12 days later the Council of Ministers under his chairmanship decided to send the order to parliament. The Minister of Justice who previously held that the Order needed no such procedure, now says that the Order cannot be made by the President alone and instead requires a parliamentary-approved constitutional amendment. For a country with a long history of civil strife, the persistent pursuit of legal arguments by both opponents and proponents to debate a decision by the President represents a reason for hope.