Constitutional dilemma that awaits government in charting path for polls
South Sudan’s quest to end the transition on a higher note with an election next year now hinges on the legal framework, whose fate divides the main parties of the revitalised peace agreement.
The government has so far initiated the process of deploying the graduated necessary unified forces to ensure security during the vote. But even after handling this challenge, The City Review can now exclusively reveal that a snag of similar magnitude lurks in the constitution-making process that is now riddled with varying opinions that amplify the state of dilemma.
Aside from the recent bitter difference between SPLM-IG and SPLM-IO during the contentious passing of the National Elections Act 2012, after its amendment, there is another crack. The leaders from both camps hold different views on holding elections with or without a permanent constitution.
The disagreement persists on whether the country should go for an election after completing the permanent constitution as stipulated in the agreement or not.
The ruling party, the SPLM-IG, and its allies prefer polls without a permanent constitution, arguing the process may take a long time and delay the elections. But the opposition, the SPLM-IO, avers that the constitution must be the basis for the country to have a free and fair election and that it is achievable through political will.
Addressing the media during the International Day of Peace celebration at Juba’s Nyakuron Cultural Centre on Thursday, the First Vice President Dr Riek Machar, who is also the leader of SPLM-IO, said South Sudan needs to fast-track the constitutional process to make sure there is a legal reference to elections.
Dr Machar was optimistic that the necessary commissions would be soon established as most of the names of the committee members have been submitted subject to confirmation.
“The constitutional review commission and the accompanying institutions, such as the constitutional drafting committee and the preparatory sub-committee that would assist the NCRC, are, I believe, now ready. Names have been provided; I can affirm that to you,” he said.
Machar, who had recently called for a “security first” approach before polls, also maintained that a permanent constitution would be necessary for a credible election.
His statement was a contradiction to what the government spokesperson, Michael Makuei, said at a press briefing last week where he asserted that the 2024 elections could be conducted in the absence of a permanent constitution.
Makuei argued that the permanent constitution should be completed later by the newly-elected parliament, adding that the current members of parliament “were not all elected.”
The civil society has cautioned that although it is possible to have an election before the constitution, such a fragile step would require the consensus of all the peace partners.
The Executive Director for Community Empowerment for Progress Organization (CEPO), Edmund Yakani said that elections are possible without a permanent constitution. But he added there could be room for consensus.
“It is possible to conduct elections without a constitution, but the political parties have to reach an agreement that the priority of the elected government is constitution-making,” Yakani said.
Loopholes and lack of clarity
Besides the lack of consensus, there are existing legal bottlenecks that could make breeding grounds for controversy, especially on the tenure of a president-elect.
While the Transitional Constitution of the Republic of South Sudan, 2011, stipulates a four-year term for a president, its tailored to a specific period of time, making it difficult for the legal experts and interpreters of the law to clearly affirm how it could be used in the forthcoming elections.
“The tenure of the office of the President of the Republic of South Sudan shall be four years, commencing on July 9, 2011,” the Transitional Constitution is partly read.
Also, under the immunity and impeachment of the president, it the transitional constitution states: “The President shall be immune from any legal proceedings and shall not be charged or sued in any court of law during his or her tenure of office.”
The National Elections Act of 2012, before it was amended, emerged as one of the controversial laws that could keep the President in power, as it did not clearly specify in its charters the term limit or term of office.
Chapter II of the National Election Act 2012, under “Announcement of the Date of Elections”, stated the time the president-elect shall assume the office but did not specify the term limit.
“The President shall hold office for a term beginning on the date on which the President was sworn in and ending when the person next elected President is sworn in,” the Act partly read.
Apart from this, the National Elections Act 2012 (before amendment) stipulated that a president-elect would be sworn in within a span of 24 hours, leaving no room for anyone or any institution to challenge his or her victory in court—something common in modern elections in Africa.
“The President-elect shall assume office of the President within 24 hours upon being declared the winner by the election commission,” the Act partly read.
Meanwhile, the National Election Act, after its amendment, does not clearly outline the changes made to the public in regards to the conduct of elections.
Part II of the Act which talks about the election commission does not specify the changes made in regard to the term of office of the president. But it partly states: “Section 15 of the Act is amended by renumbering and restructuring sub-sections (1), (3), and (4) to read as follows.”
What it refers to are the commission’s powers in announcing the date of the election with a notice of six months and the whole mandate of conducting the elections.