January 8, 2015 (SSNA) — In recent weeks, a vigorous debate has been had on the 2015 elections in South Sudan and the debate is on-going. The Elections Commission, an institution sanctioned by the law to carry out this task has made it abundantly clear that the election will take place. Political parties and other political actors have also shared their thoughts on whether there should be elections in 2015 or not. Nonetheless, whichever views are put forward, I have reasons to believe that most of these commentators are wearing political camouflage and metal headgears.
It is within this context that a professional and neutral opinion is needed to set the rules on this debate straight and I wish to lead in this discourse not with political or other spectacles but with transparent eyeglasses as someone who is not just posting an opinion but a person who is giving an analytical view on whether there should be elections in 2015 or otherwise. I wish to do this in the following sub-headings;
The Facts and Legal Framework
Article 100 (1) of the Transitional Constitution of the Republic of South Sudan, 2011 stipulates that; ‘the tenure of the office of the President of the Republic of South Sudan shall be five years’ and sub- article (2) of the same article state that; ‘notwithstanding article (1) above, during the transitional period the term of the President shall be four years beginning from July 9, 2011.’ This article should be read and interpreted along with Article 66 (1) of the Transitional Constitution, 2011 which states that, ‘the term of the National Legislature shall be five years and sub-section (2) states that notwithstanding article (1) above, the term of the current National Legislature shall be four years from July 9, 2011. What these articles tell us is that the term for both the Executive and Legislature runs and ends concurrently. It also means that both their mandates end on July 9, 2015.
Article 26 of the Transitional Constitution talks about the rights of the citizens to participate in elections and it states that, ‘every citizen shall have the right to take part in any level of government directly or through freely chosen representative, and shall have the right to nominate himself or herself or be nominated for a public post or office in accordance with this constitution and the law.’ It added that, ‘every citizen shall have the right to vote or be elected in accordance with this constitution and the law.’ Whether the spirit of this article can be achieved in the proposed elections is a topic of debate as we move along this article.
The South Sudan Elections Act, 2012 talks generally about the procedures to be used in approaching elections. The act deals with issues of registration of candidates, screening and creating polling centers. The list is long on the ethics and guidelines through which the Commission is supposed to conduct elections but above all, the Commission is tasked with conducting free, fair, transparent, democratic and peaceful elections.
It is in regard of the above articles that concentrated debate on the elections is provoked because, typically, the elections as per the above provisions should take place in June 2015 while a new democratically elected government is expected to be sworn in and take over office by July 9, 2015. This is also the basic reason why most of the proponents of elections talk about the legitimacy of the government and the necessity for holding elections in 2015.
Customarily, most countries carry out their general elections after every four or five years, examples in this case are Kenya, USA, and Uganda. Rwanda holds its Presidential and Parliamentary elections after every seven years. This is just but an illustration of systematic renewable of political mandate within the region and beyond but the issue here is what happened in case the elections do not take place within the constitutionally stipulated time?
This question looks first at the circumstances under which the delay in elections come in and then, legal measures are taken to address what is likely to amount to constitutional crisis and power vacuum. For instance, Kenya after the promulgation of its constitution in August 2010 had stipulated that its general elections under a new constitutional dispensation shall take place in August 2012; unfortunately, this didn’t happen largely due to a number of reforms agenda that were supposed to be carried out including establishing an independent Judiciary before the elections. The Kenyan Parliament (now Defunct) felt that it was necessary to extend the term of the incumbent government for at least five months in order to create time and establish the institutional reforms needed, this wasn’t done by decrees but through amending the provisions that deals with elections in the constitution. Ultimately, Kenya held it elections successfully in March 2013.
Several models of postponed elections on numerous circumstances are in abundance and this leads me to the next question; Is South Sudan general election, in fact its first general election after her independence faced with the circumstances as experienced by other countries? This question can be answered in the next sub-heading if I were to answer it adequately.
South Sudan has been engulfed in conflict with itself for over a year now and consequent of this conflict, it democratic rating, economic strengths, the unity of its people, social and political fabrics have been highly obstructed. Such factors do not provide not only room for elections but also poison the environment for any significant and meaningful elections to take place legitimacy of the government notwithstanding. This is just a hypothesis as I am yet to draw my conclusions at the end of this article.
But before I reach there, we must quickly answer the question as to whether the circumstances that our country are in now allows for elections to take place. The first answer would be NO on many grounds. One, there is insecurity across the country and carrying out elections in such an environment would not allow the citizens to freely exercise their democratic rights and vote for whoever they want as there would be fears all over. Secondly, elections need funds and throughout the world, no single country can afford to fund its own elections, international funding is needed to help in conducting successful elections and in the absence of this support as that is the likely probability, contemplating to fund elections single handedly is an economic suicide. Thirdly, in each election, at least two or more political parties must contest and as things stands now, almost all the political parties except SPLM mainstream are against any holding of the elections and this therefore means, if the elections were to take place as advocated for by some actors, it would mean SPLM contesting against itself. Fourthly, doing elections in 2015 is an official declaration of subsequent instability in the country as those who may lost will have no choice but to go Athor-Yau Yau’s direction. Unfortunately, their retreat will not be independent as was that of Athor and YauYau but will immediately leans towards joining the other side against the government. Fifthly, elections are about asking people to freely select those they thinks can represent them efficiently and deliver service to them effectively. The 2015 elections will not do that because anyone who does not vote for a candidate especially if such a candidate comes from SPLM will be branded as from the other side, this therefore means that, there will be a lot of intimidation, coercion and other irregularities than what had happened in 2010.
The 2015 elections if it is allows to happen shall be a replica of what happened in Uganda in 2012 elections when the incumbent Ugandan President sent his troops to the streets across the country to ensure that all the votes are tailored in his favour. Lastly, the time is so limited if the Chairperson of the election Commission said that the elections are scheduled to take place on June 30, 2015. Voter registration needs up to three good months, primaries by political parties need at least two or so months and many other pre-election arrangements have to be put in place including the security set up for any meaningful elections to take place. All these are underlying challenges that should not be overlooked because ideally, no country can risk going for elections with these long list of challenges.
The question of legitimacy of the government comes in here; the proponents of 2015 elections are quoting precedents from countries like Syria and Libya as countries that did their elections during the crises. Yes, it is true but again, how legitimate was their legitimacy? The question of legitimacy should not only be looked at as stipulated in the constitution, there are other thresholds that should be considered in addition to the constitutional provisions on legitimacy and some of these prerequisites include but not limited to; Will the region and international community recognize the legitimacy of the government elected? Are the citizens or electorates happy and will they recognize the government and the process? Is the environment in which the elections are being conducted free and fair to the extent that all electorates shall have the freedom to choose who they wish should represent them in the government plus, would there have been any other better alternatives in which the tenure of the executive and legislature legitimized than venturing into elections that would be a ponderous box?
All such questions are what should be considered and addressed before any country could talk about going for elections. Yes, the government may use the elections as the means to put pressure on the rebels to concede to its position in the peace-talks but is this a long term solution to the crises in South Sudan, the government may too be assuming and maybe telling the international community that, despite the crises, the country is still on track and has it plans on course. Maybe yes, maybe not, but altogether, it should be applause that the proponents on the government side are now finding it necessary to implement the constitution at some point. The unfortunate thing is that, since the adoption of the Transitional constitution five years ago, it has occurred on several occasions that the constitution has been implemented selectively and this is manifested on article 101 (s) and (r) regarding the removal and elections of governors. Nevertheless, the insistency on elections in June 2015 is all a political game that is being qualified by constitutional provisions. It is to some extent a political fiction intended to reaffirm legitimacy and disregard all the consequences that comes with it.
I named the calls for elections in 2015 in South Sudan “Democratic Fantasy’ because the object for holding elections every five or four years throughout the world is always to allow people exercise their democratic rights and choose people that they thinks will represent them well in the government. It is always a social theory contract between the people and the ones that they are giving five or so years to govern them. But in this case, 2015 elections may not be that kind of theory because, people maybe forced to vote for those they don’t want or are tied with or there could as well be voter apathy since most people may feel that the elections are not carried out not because the government want to renew its vows and political ideologies to the people but it is only doing elections because its legitimacy is in jeopardy. It means that, after the reaffirmation of legitimacy, it will be business as usual. The fact that other countries like Syria carried out their regular elections despite the crises is not a successful precedent that can be emulated if there are alternatives for extension of the lifetime of the incumbent Executive and Legislature.
Using my transparent spectacles in this debate, I wish to give the stakeholders that are engaged and involved in the elections debate the following recommendations;
1. The government especially the SPLM should use it parliamentary majority in the Legislature to amend articles 66 and 100 of the Transitional Constitution 2011 to extend the life of the current Executive and Legislature for at least two or three years. The amendment bill should be based on the above mentioned challenges while precisely; it should be used to give ample time for the on-going peace talks to come to their logical conclusion.
2. The rebels if they intend to do reforms in this country as they usually claim must not cheat themselves that delaying to sign peace agreement with the hopes to declare the government illegitimate when July 9, 2015 comes are misplaced calculations because this wishful thoughts are taken care of by recommendation number one there above. The best these people can do is to engage the government to sign peace and then come and follow up on the reform agenda that they are so much advocating for. The prerequisite for this will be the formation of the Transitional Government of National Unity which will automatically render the debate on elections obsolete.
3. The regional and international community if they want South Sudan to be peaceful and develop democratically must do two things, one, they must take away all the strings that they have attached to the peace talks in Addis Ababa and speed up the process of facilitating and honestly pressurizing the warring parties to sign the peace agreement. Secondly, they must convince the rebels and government that strategies and conspiracies to provoke elections to take place and render it null and void or forcing it to happen are not going to help the people of South Sudan in both their peaceful co-existence and democratic prospects. The rebels will swallow it bitter if the elections takes place and the government get another five years mandate.
4. The elections Commission instead of now playing a complacent role of telling people that there should be elections on July 9, 2015 should be a professional and neutral body that advices on what should be the best alternative in the circumstances like what the country is in now. The election Commission is not a government employee or parastatal to the extent that, if the government says there will be elections or no elections, then its follows suit. It must have its own independent opinion on whether or not there should be elections or otherwise. All in all, the Commission has been unable to conduct by-elections in the four states that the governors were sacked on excuses of having no money, where would it now get the whooping 1.5 billion required to conduct country-wide elections. I think some reasoning is needed here.
5. The proponents of elections must look beyond legitimacy question, there is more to elections than just reaffirmation of positions because as this is achieved, the issues of democracy, trust, confident and even the absolute legitimacy itself would have been thrown out of the window because meeting an electoral date is just one thing but nurturing nascent democracy like ours is another because after all, There are alternatives to renewing the legitimacy of the current government as articulately stated in recommendation one above.
Legally speaking, elections can take place in accordance with the provisions of the Transitional Constitution of South Sudan, 2011 but alternatively, the challenges as navigated through there above can be considered if the unity, peace, stability and democratic future of South Sudan and its people is use as a recipe to determine its future affairs. I am against the holding of elections in 2015 not because I am speaking for anyone but it is because I feel that, elections in the circumstances our country is in now would be largely an exercise in futility.
Juma Mabor Marial is a Trainee Advocate based in Juba, reachable at: [email protected]