South Sudan’s President Salva Kiir may try again next month to win passage of his draft national security bill, after repeated attempts last month to secure a vote on the bill with the requisite quorum of 155 or more parliamentarians.

His press secretary announced in Juba on Wednesday a political and legal strategy that relies on two controversial assertions about the bill. First, Kiir plans to ignore the matter of quorum and insist that the bill was in fact already passed into law.

This approach depends on the absence of publically available parliamentary records about the most recent vote on the bill, which was taken on 8 October as an oral motion whilst a large bloc of ruling party MPs boycotted the sitting.

“The national security act was in fact passed and enacted into law by the national legislature… It is now awaiting the president’s assent and signature,” said Presidential Press Secretary Ateny Wek.

With this position, Kiir avoids acknowledging that he suffered any political setback owing to the controversial 8 October vote.

However, in order to mitigate the risk of a court challenge from dissenting MPs or any other litigant, the president has thus far withheld his assent to the bill and hinted that he will ask parliament to deliberate the bill yet again.

“Like he has did it before, the president might return the bill to the parliament,” said Ateny, explaining that the president is still consulting with legal advisors on some issues raised by human rights groups and civil society in various petitions to Kiir.

He suggested that these substantive issues – rather than procedural or political factors – were the reason for the delay in making the bill law.

Interpretation of Article 85

The president’s position raises another legal question, however, which Ateny addressed directly at the press conference yesterday.

Per the terms of the constitution, the president may only withhold assent to an approved bill for a period of 30 days – after which it automatically becomes law. “If the president withholds assent for thirty days without giving reasons, the bill shall be deemed to have been so signed,” reads article 85 of the constitution. 

This means that if the bill were in fact passed by the parliament on 8 October – as claimed by the president’s supporters – then it has already become law, regardless of whether the president has signed it or not.

Ateny insisted, however, that the bill has not yet become law, arguing that the 30 days should be counted from the date of receipt of the bill by the Office of the President, and not from the date on which it was approved by parliamentary vote.

“The bill was submitted to the Office of the President on November 21st, 2014, just few days ago, and it was submitted by the Legislation and Justice Standing Specialized Committee in the National Legislative Assembly,” said Ateny.

Again he stressed, “I wanted to tell you that the Office of the President received the National Security Service bill on the 21st – and the 30 days requirement of that article of the constitution which is Article 85 sub-article 1 – you now, um, as put, um, the, um, process to have started on the 21st, so you are waiting until 21st of another month in order to know whether the security bill will be deemed to be a law, because that law requires the president either to assent or not to assent and give a reason as to why he wanted to return the bill back to the parliament.”

Otherwise, he said, the bill will be deemed to be law “[even] if the president doesn’t assent or give a reason within the 30 days.”

Related coverage:

South Sudanese MP slams defeated security bill (22 Nov.)

Continuing dissent within SPLM-Juba over Kiir’s security bill (7 Nov.)

Diplomats say South Sudan security bill may contradict constitution (22 Oct.)

Kiir dismisses his legal advisor Telar Deng (18 Oct.)

Political parties to Kiir: don’t sign security bill (17 Oct.)

S Sudan ex-justice minister warns of 'disregard of the constitution' (13 Oct.)

Natl. Security ‘not immune from prosecution’ (10 Oct.)

Document: South Sudan’s revised National Security Bill (10 Oct.)

Photos: S Sudan assembly largely empty during security vote (9 Oct.)

Bill sidelines South Sudan security minister (9 Oct.)

SPLM-DC warns of ‘ghost houses like Khartoum’ (9 Oct.)

Document: Assembly edits to the NSS bill (9 Oct.)

Atem Garang raised concern about security bill prior to vote (9 Oct.)

Hundreds of MPs absent during vote on Kiir’s security bill (8 Oct.)

South Sudan MPs fail to show up for vote on Kiir loyalty oath (7 Oct.)

Bill requires South Sudan secret police to swear obedience (6 Oct.)

S Sudan: vote on controversial NSS bill delayed until Tuesday (5 Oct.)

Document: South Sudan’s National Security Bill (30 Sept.)