The looming crisis of constitutional legitimacy in South Sudan

By Luka Biong Deng

The way government gets legitimacy has been at the centre of political inquiry. As political legitimacy is seen as individuals’ voluntary consent to be governed by the political authority, the real question is how such consent is generated. It is argued that this consent is generated through a process of evaluation of behaviour of government before the consent. Such evaluation is always centred on the procedural and distributive actions of the government. The legitimacy of a government is enhanced if it is perceived by citizens to have discharged the core functions such as legitimate monopoly of means of violence, maintenance of rule of law, delivery of public services and economic and political transformation. It is generally argued that the loss of legitimacy is the primary cause of fragility and failure of states. Ashraf Ghani, the President of Afghanistan, argues that the loss of legitimacy is always associated with an increase in illegality; informality and criminality in the economy; ineffective delivery of basic services; failure to maintain or expand essential infrastructure; increase in corruption; and appropriation of public assets for private gains

Although it is generally agreed that the selection of leaders to govern through fair elections is an important part of establishing a legitimate state, there is growing evidence that shows elections may not be appropriate in the context of countries emerging from civil war. It has been found from the data of post-civil war elections during 1945-2008 that elections can strengthen peace only if there are strong political, administrative and judicial institutions. It is argued that holding elections too early can worsen conflict as the post-election government may be dominated by ex-combatants who are not demobilized and losers of elections may reject the results and resort to violence. The 2010 election in South Sudan is a good example of how elections could result in more instability and violence.

The citizens of South Sudan who overwhelmingly gave their voluntary consent through elections in 2010 to the SPLM-led government to govern them are now in appalling conditions after the eruption of civil war in December 2013. About 1.3 million people are internally displaced and about half a million people took refugee in the neigbouring countries; making it the most serious displacement crisis since the 1983-2005 civil war. With generous intervention by international community, particularly USA, an imminent famine was averted but a looming famine persists in 2015. About 6 million people are food insecure with tens of thousands of children remaining at risk of malnutrition with rates of acute malnutrition reaching over 30 percent that is more than double the officially recognized emergency levels. It is estimated that thousands of innocent lives were brutally lost in an undignified way. UN Human Rights report on South Sudan painted gross human rights abuses that may tantamount to crimes against humanity. The report of AU Commission of Inquiry for South Sudan may be damaging as it may expose individuals who might have directly or indirectly participated in atrocities committed since 15th December 2015.

Using some of the markers associated with loss of legitimacy, there is no doubt that the popular legitimacy of the SPLM-led government is rapidly eroding since the eruption of conflict on 15th December 2013 and may face constitutional legitimacy crisis in the coming few months. Although the government may have an option of allowing itself to become constitutionally illegitimate, there are three options available for the SPLM-led government to retain its constitutional legitimacy.

The first option is for government to conduct general elections as provided for in the constitution and the national elections act with the aim of having newly elected government by the end of transitional period on 8th July 2015. As the national elections commission has announced the date for the conduct of the general elections to be on 30th June 2015, the parliament and government will be dissolved by 30th March 2015 as per the provisions of Section 15 (2) of National Election Act. Article 194 of the Transitional Constitution 2011 makes it clearly that the outcome of population census to be conducted during the transitional period shall be the basis for determining the number of electoral constituencies for the elections. The National Elections Commission seems to have misinterpreted the provisions of Article 194 as it may resort to unconstitutionally use the results of the last population census to determine the number of electoral constituencies. Since the population census has so far not been conducted, the Commission will have no any other legal basis to determine the number of electoral constituencies.

If we assume that there would be no rains, no insecurity, budget availed, all necessary logistics provided by UNMISS as in 2010 and constituencies are determined, would the conduct of elections on 30th June 2015 ensure the constitutional legitimacy of the government? The answer is unambiguously NO! It is incomprehensible that the National Elections Commission will produce the results of elections within one week and to have a newly elected government by 9th July 2015, the expiry date of the legitimacy of the current government. Also, some political parties have submitted a petition to the Supreme Court calling on a solid legal ground for an injunction against the holding of elections.

The second option is for the current government to conclude a peace agreement with SPLM-In-Opposition and other stakeholders through the IGAD-led mediation in Ethiopia. Although the IGAD-led mediation has been very bumpy, it has incrementally succeeded to address the root causes of conflict in South Sudan. The two-track approaches of addressing the crisis at national level may now yield results, particularly the current SPLM Reunification Agreement signed in Arusha, Tanzania. This Agreement is so comprehensive in addressing internal issues within the SPLM but it also provides the way SPLM intends to address the national crisis. The leaders of the SPLM and particularly Comrade Salva Kiir as the Chairman of the SPLM should be congratulated for taking such a bold and heroic decision in restoring the unity of the party. Also this Agreement provides opportunity for expediting the conclusion of peace talks in Ethiopia. Since SPLM is now united no much time will be wasted in discussing power sharing except what share to be given to other political parties. The SPLM 2010 elections programme made political commitment of allocating 30 percent to other political parties and women to have a share of at least 30 percent. The allocation of executive power between the President and Prime Minister should be amicably resolved within this new spirit of unity in the SPLM. In order to avoid crisis of constitutional legitimacy, the peace agreement must be concluded no later than next February to allow the current national legislature to amend the constitution by the end March 2015 and to extend the constitutional legitimacy of the government for the new transitional period.

The third option is to amend the constitution as provided for in Article 199 to postpone elections for at least one year. However, the proposed amendment should be introduced at least one month prior to the deliberations for its approval. This means that the proposed amendment must be introduced during February. This situation is complicated by the fact that the national legislature is in recess until April. With the national elections commission announcing the conduct of general elections on 30th June, the parliament will be dissolved by the end of March. The only option is to recall parliament but no later than February. One good aspect of this option is that it allows the peace negotiations to continue in Ethiopia while the current government retains its constitutional legitimacy. As most other political parties, some groups of civil society and international community have asked for the postponement of the general elections, this option has better chances of retaining the constitutional legitimacy of the government with the least political costs.

One would expect the next round of peace negotiations to be decisive. With this new spirit in the SPLM, IGAD has better chances than before to encourage the parties to reach amicable resolution to the current crisis. If peace agreement is not concluded soon, South Sudan will face a crisis of constitutional legitimacy as the current parliament that is expected to endorse the peace agreement and to amend the constitution would cease to exist by the end of March. The next summit of IGAD is expected to assist the parties of the best way of rescuing South Sudan from this looming crisis of constitutional legitimacy by urging the warring parties to conclude the peace agreement soon and the government to initiate as soon as possible the amendment of the constitution to postpone elections for at least one year.

The author is the Director of the Centre for Peace and Development Studies, University of Juba. Global Fellow, Peace Research Institute Oslo. Associate Fellow, Carr Centre at Harvard Kennedy School [email protected]