PREFERENTIALISM IN THE JUSTIFICATION OF THE DISPOSAL OF SCHOOL PREMISES IN CENTRAL EQUATORIA STATE
A conflict within Government entities in South SAdv. Ayuel L. Kon Leek – freelance legal writer
The National Minister of General Education and Instruction, Awut Deng and CES Governor Augustino Jadalla stopped an illegal construction at the premises of Superi Secondary School in Juba, and pledged to take actions against those responsible for reportedly selling out the land. Reports indicated that Superi School premises sold to three companies for investment by the State Ministry of Education. The purpose of this article is to spotlight the legal aspects of the action taken by the State Minister and the laws for the disposal of school premises in South Sudan.
The Government attempted to regulate the disposal of government property and public premises at the national level by adopting the relevant acts, the regulations of such matters at the state organs have remained a great thorn in the flesh for the national government. In practice, the North and Bahr el Ghazal states even proceeded further and constituted rules for the disposal of public premises.
The authority of the national government over state governments concerning the disposal of government property or public premises is defined by the nation’s legal framework, including the Transitional Constitution of the Republic of South Sudan (TCRSS) and various statutory laws. The primary principles and regulations for the disposal of school premises in Central Equatoria State, involves a legal framework that includes constitutional provisions, national legislation, and specific state regulations. Below is an outline of the legal basis for such disposal:
#Constitutional_Framework
The Transitional Constitution of South Sudan provides the overarching legal framework for the governance of the country, including the delineation of powers between national and state governments. The national government has exclusive legislative and executive competence over matters of national importance, including those related to government property and public premises. This is outlined in the Schedule A of the TCRSS, which enumerates the exclusive powers of the national government.
Both the national and state governments may have concurrent powers over certain areas, as specified in Schedule C of the TCRSS. However, in case of conflict, national law prevails.
The constitution provides for the distribution of residual powers, which are not explicitly mentioned in the schedules, often defaulting to the national government.
#National_Legislation
The Public Procurement and Disposal of Assets Act, 2018 serves as the primary legal framework for government asset disposal in South Sudan. However, it doesn’t explicitly outline a step-by-step process for disposing of specific assets like schools. The act establishes general principles for transparent and accountable disposal of government assets such as public auction, sealed bids, or direct sale (stipulated in regulations to be develop under the Act, which has not yet done.)
The Act establishes the South Sudan Public Procurement and Disposal of Assets Authority as the central authority responsible for overseeing and regulating the disposal of government assets.
In conclusion, the possible scenarios for School Disposal in regards to this Act is by Declaration as Surplus, Disposal Approval, Disposal Method Selection or Public Notice; otherwise, any other scenario in example of the action of CES Minister will be considered as preference utilitarianism.
#The_Land_Act_2009 establishes a framework for managing land resources in South Sudan. It outlines different types of land ownership, user rights, and procedures for land administration. The act doesn’t have specific articles dedicated to disposing of school buildings or land they occupy.
#The_General_Education_Act, 2012 focuses on establishing a regulatory framework for the education system in South Sudan and doesn’t directly address the disposal of school premises either.
#Inter-Governmental_Coordination
Coordination between national and state governments is essential in the disposal of government property. The constitution and relevant laws often require consultation and cooperation as well as regulatory compliance.
#Judicial_Oversight
The Transitional Constitution of the Republic of South Sudan, 2011 (articles 47(2) and 126(2)), grants the Supreme Court original and final jurisdiction to resolve these types of disputes. This means the Supreme Court is the first and final court to hear these cases.
The Supreme Court can adjudicate disputes between the government and companies, which could involve contract breaches, expropriation of property, or other legal disagreements.
The specific procedures for dispute resolution through the Supreme Court are likely outlined in a manner of Initiating the Case: The aggrieved party (national/state government or company) files a
