By Riang Yer Zuor Nyak
January 25, 2015 (SSNA) -- In my last article, titled ‘Salva Kiir’s Attack on His Own Legitimacy Claim’, I made a point that the Transitional Constitution of the Republic of South Sudan, 2011 provides for four years of transition ”… before a new election could take place under a new and permanent constitution.” The most important part of that statement is the area talking about elections under the permanent constitution.
It signifies that there is no chance for any elections to take place under the current transitional period under the Transitional Constitution. I am only glad that the Opposition Parties have picked up that point and made a move to challenge the government in court for unconstitutionally wanting to conduct elections under the Transitional Constitution.
I want to state that the Opposition Parties have a standing to challenge unconstitutionality of any government’s act, as do any other citizen in the country, so long as the case is justice-able, ripe and not moot. But, they are wrong as far as timing is concerned. Filing their case at this time goes against ripeness doctrine. The current statements are only threats of action. The government has not yet taken any tangible step towards executing this threat. They should have waited for the time when the government actually releases the election money to the Elections Commission. That would trigger a case for an injunctive relief.
The premature action of the parties is only giving the court an opportunity to throw the case out on the ground that the case is not ripe yet. Nevertheless, there is no chance that the parties can win any case (ripe or not ripe, constitutional or unconstitutional) against Salva’s government in Chan Reech Madut’s court.
Before March 2013, the issue of elections in 2015 was never problematic. It suddenly started becoming a controversial one after March, when a number of SPLM leaders started showing their interests in the Party’s Chairmanship. After Salva’s leadership was openly challenged in the party, Salva and Wani started talking about the impossibility of the elections, citing lack of money to fund the exercises, as there were loans, to be repaid, which resulted from the 2012 oil shut down.
This position was taken at the time because Salva and his group did not yet know what to do with those who had shown interest in the Chairmanship of the party. It has to be noted that the party issue had a bearing on the 2015 elections. The SPLM Constitution stipulates that the Chairman of the SPLM shall be the flag bearer in the presidential election. So, something had to be done first to ensure that the Chairmanship of the SPLM remained with Salva before elections could be allowed to take place. The situation remained as such.
The whole thing started changing after the dissolution of the SPLM structures before the 6th of December 2013. This was the time after the group (Salva’s) seemed to have come up with a plan of action. They had decided to leave the opposition out of the party processes of passing the party basic documents and preparing for the National Convention. This was done to ensure that Salva controlled the process so that the Convention could end up electing him.
Before the Convention could take place, Wani started talking about the elections to be carried out on time. Their actions, beginning with the dissolution of the party structures, pre-determined the outcome of the Convention. They were sure that Salva would remain the Chairman of the party.
To make sure that these opponents did not have freedom to speak or take part in the political process, a plan was put in place to eliminate them one way or anthor. It had already begun with the home confinement and gagging of Pagan Amum and the removal and accusation of Deng Alor and Kosti Manibe on the basis that they had committed corruption.
For Dr. Riek Machar, they could not come up with any corruption charges. This led to the false accusation of a coup attempt. This was meant to take him out on charges, which would fetch him death sentence. That way, he could be eliminated for good. Carrying this plan out resulted in the current war breaking out, and the issue of elections became mute on its own.
Unilateral Postponement of the Elections
As the Peace Talks were going on last year in Addis Ababa, Ethiopia, Salva Kiir while arriving at Juba Airport from an IGAD Summit in May, made a unilateral declaration that he had postponed the elections to 2018 or so. It did not matter to him whether or not he had a reason for such an act. To him, he was exercising some imaginary constitutional power, or he might actually have thought of himself as the constitution, needing no one else to consult. To other ordinary South Sudanese, it was a clear show of dictatorship. It also showed that he had no regard for the Talks in Addis Ababa.
It was after the declaration that Salva received criticisms both internally and externally. These criticisms came from all directions, including Yoweri Museveni himself—Salva’s most trusted external advisor. As a result, the idea of running elections was dropped altogether. It timing was left to be negotiated at the IGAD-led Peace Talks.
Suddenly, the nagging issue of legitimacy has become one of desperation on the part of the government. It has now brought the 2015 elections to the fore. I suspect that it is not well thought out. It might have come up during some form of an ordinary conversation that the constitutional period of transition was approaching its end. Then someone might have tried to put himself in the position of a problem solver by suggesting elections as an ingenious way of restoring legitimacy. But, would that really solve the problem? Not a chance. The current Transitional Constitution is a big stumbling block.
Whatever Happened to the Transition?
Arguments for and against the 2015 elections have been advanced by many a people, following the first time that the government started declaring its intentions to conduct elections so as to avoid “leadership vacuum”. These arguments for the conduct of elections include the government carrying out a constitutional mandate, avoiding being categorized as illegitimate, and allowing the people to exercise their constitutional democratic right of choosing their leaders. Whatever they are, the arguments have no constitutional basis.
Arguments against the elections include insecurity, lack of a conducive atmosphere for the elections, state of emergency in Greater Upper Nile and the Peace Talks in Addis Ababa. They all suggest the impossibility of conducting a free and fair election. They are very sound and legitimate reasons. However, they are secondary.
The primary focus should be on the fact that the current period in the country is transitional. As such, the current Transitional Constitution’s role is to transition us from the period when South Sudan was an autonomous part of the old Sudan to the period when we could have a permanent constitution. It follows that the period is for the preparation of a new and permanent constitution of our own for the newly independent Republic of South Sudan. It is the government constituted or created by such a new and permanent constitution that officials should be elected to. It is not the current transitional government that officials should be elected to, as advocated by Salva and group.
Putting Pressure on the SPLM/A?
Someone made a suggestion that the government might be trying to put pressure on the SPLM/A by trying to conduct national elections. This is a laughable assertion. There is no way that one can put pressure on another by doing the wrong thing. One would be best served by doing the right thing in the interest of the people so that the opponent, if trying to go the opposite way, can find him/herself against the people.
The government, if that is part of the plan, will find itself under its own pressure by ending up antagonizing the people by trying to conduct unconstitutional elections. The people have a lot of things on their minds. There is war raging on in the country, which would make it impossible to conduct a free and fair election; there is a state of emergency in Greater Upper Nile; there is a threat of war-induced famine looming; there were fellow citizens killed in cold blood and no accountability procedures in place yet; and there are many more. Faking an election for the sake of a manufactured legitimacy would be the last thing to hear.
Insisting on the elections without legal basis would see the government ending up putting pressure on itself, as it will find no support from the ordinary people and the international community as well.
A Cart Before the Horse
The government should, now, be concerned with what to do with the transitional period as the first priority. Or else, whatever Juba does other than that, is meaningless. At this point, it has only two options to choose from before contemplating the conduct of elections. Going for the elections before going for one of the two options is like placing the ‘cart before the horse’.
1. Writing the Permanent Constitution
Paragraph 8 of the Preamble to the Transitional Constitution of the Republic of South Sudan, 2011 talks of the use of that Constitution and the period for which it shall be in use. It is only and strictly to be used for the Transitional Period. It talks about how the Constitution should be referred to upon adoption “…and shall be the supreme law by which the independent and sovereign South Sudan shall be governed during the Transitional Period…” It is at the end of this period that the new constitution should come in to force.
Article 199 (2) of the Transitional Constitution supports the point made above. It states, “This Constitution shall remain in force until the adoption of a permanent constitution.” By “This Constitution”, it refers to the Transitional Constitution.
Therefore, the task that the government should be prioritizing, if it is not concerned about the on-going war, should be to write and promulgate the permanent constitution—instead of wasting time and energy talking about preparing the country for what it calls ‘June 30th elections’. It is after the promulgation of the permanent constitution that elections could be conducted. It should not be the other way around.
2. Extending the Transitional Period
In the alternative, Salva could use the provision of the current Constitution to amend the same so as to have an extended period of transition. Article 197 of the Transitional Constitution, in regards to amending, states that, “This Constitution shall not be amended unless the proposed amendment is approved by two-thirds of all members of each House of the National Legislature sitting separately and only after introduction of the draft amendment at least one month prior to the deliberations.”
Knowing the nature of the current National Legislature, I believe Salva would not have difficulties getting the Constitution amended. Getting two-thirds of members in each house to support his amendment would be an instant event.
However, the extension of the transition would not allow elections. The extended period would only be used for the writing of the permanent constitution. It is after this that the elections would result.
Either way, Salva has no legal way of avoiding writing the permanent constitution before he can actually go for any elections.
Whether the government acts alone or in agreement with the SPLM/A, elections—under the current constitutional dispensation in the country—can never be legally conducted to give legitimacy to the current government. There is just no constitutional mandate for elections into the current constitutional regime. It is under the permanent constitution that national elections can be conducted.
Instead of elections, the government should only start thinking on how to embark on writing and promulgating the permanent constitution, if it has the legitimacy to do that alone given the current war situation. It is after this that an election can be talked about. Otherwise, the government would be putting carts before horses.
The current transitional period is not for elections. It is for our transition to the next period to be ushered in by a new constitution. It is the next government that leaders will be elected to. This and other reasons, such as insecurity, peace talks that are on-going, etc will never allow this much-talked about elections to happen.