Are general elections in South Sudan postponed?

By Luka Biong Deng

The National Elections Commission, in accordance with the provisions of the National Elections Act, 2012, set 30th June 2015 as the date for the conduct of general elections at national and state levels. However, the Minister of Information, as the spokesperson of the government, announced on 13th February that the cabinet has decided to call off the elections and extend the lifespan of the elected positions so as to give peace a chance. Although it is a known fact that the cabinet does not have a constitutional or legal right to postpone general elections or extend the lifespan of the elected positions, it was understood that the government would initiate a legal process to amend the Constitution to postpone the general elections and subsequently to extend the lifespan of the elected positions.

There is a consensus among all stakeholders in South Sudan that elections under the current conditions cannot be conducted on 30th June 2015 as set by the National Elections Commission. Besides the reason given by the government to give peace a chance, the security situation and economic conditions would not allow the conduct of elections. As such the decision by the government to postpone the general elections was popularly welcomed but within the due process of law. The parliament was rightly called back from recess to receive and discuss the proposed constitutional amendments prepared by the government that would allow the parliament to postpone the general elections.

Apparently, the proposed constitutional amendments made no reference to the postponement of elections. Instead the Constitution Amendment Bill, 2015 proposes three amendments related to tenure of parliament, the tenure of the Office of the President and mandate of the Constitutional Review Commission. In his letter to the parliament about the Amendment Bill, the Minister of Justice made it clear that the Bill provides for extension of tenure of the National Legislature and Office of the President for two years so as to avoid the lapse of their mandate by 9th July 2015 in case peace is still being pursued. In its attempt to refute the petition presented by some political parties for an injunction against the holding of elections, the Ministry of Justice argued that the Council of Ministers has already postponed the elections.

The Ministry of Justice, the legal advisor of the government, is more aware than the rest that the Council of Ministers does not have legal or constitutional right to postpone elections but it can only initiate a legal process for amending some articles of the constitution to postpone elections. If the Council of Ministers has decided to call off elections in its meeting on 13th February as announced by the Minister of Information, the Ministry of Justice should have advised the government not to take such decision. Ideally, one would have expected the Ministry of Justice to propose amendments in the relevant articles of the constitution that are related to national elections, national elections commission, population census and new transition period and then the tenure of all elected positions at national and state levels.

Although the government has constitutional right to amend any provision of the constitution except those provisions related to the Bill of Rights, the tenure of the incumbent parliament and executive can only be changed through postponement of elections as may be decided by a competent and independent body such as the national elections commission or parliament in absence of the relevant legal provisions. The fact that the Constitution and the National Elections Act, 2012 are both silent about the process of postponing general elections, the government would have initiated appropriate amendments related to general elections rather than focusing only on extending its tenure.

It can rightly be argued that since there is no constitutional provision that limits the government not to initiate amendment of provisions related to its tenure, the government could extend its tenure by focusing on the postponement of elections. Given the popular demand by t all stakeholders to postpone general elections, one would have expected the government to initiate amendment of constitution with the sole aim of postponing elections that would subsequently necessitate the extension of its lifespan. The lapse of mandate of government can only be avoided by postponement of elections.

As such the proposed amendments of the constitution may create constitutional and legitimacy challenges to the government. With these proposed amendments, the general elections are legally not postponed and there is no as well legal process initiated by the government to postpone elections. Subsequently, the date set by the elections commission to conduct general elections on 30th June 2015 is still holding. In accordance with Section 15 (2) of the National Elections Act, 2012 and since elections are not postponed, the President of the Republic of South Sudan would be expected to dissolve the parliament and executive at national and state levels by the end of March 2015.

As the parliament will return from its recess by 19th March 2015, it will only discuss the proposed amendments that would only extend the lifespan of the legislature and executive. In the process of discussing the Amendment Bill, the parliament will not have any power to discuss other amendments besides those proposed by the government. Even if the parliament passed the proposed amendments to extend the lifespan of the government, the conduct of elections on 30th June 2015 would legally be valid. Alarmingly, there will be no time for the government to propose new amendments to postpone elections.

The real question is what would the proposed amendments achieve? The extension of the lifespan of parliament and executive may be challenged and that may taint the constitutional legitimacy of the government. Secondly, there is no provision for when the next elections will be held. Thirdly, there is no provision of the main task of government during the extended period of two years. Fourthly, it is not clear when population census will be conducted. Fifthly, the status of elected positions in the states will be uncertain as such positions will expire by 9th July 2015 as per Article 164 (5)(b) of the Constitution. Sixthly, it would remain a challenge whether the government would continue to exercise the same power of extending its tenure or postponing elections.

What are the options available to ensure the legal postponement of elections? The first option is the ruling of the Supreme Court on the petition against the holding of general elections. If the ruling is in favour of not holding the general elections, then the elections commission will then implement this ruling and postpone general elections for a period that would take into account the issues raised in the petition presented to the Supreme Court. The tenure of all elected positions at national and state levels will then be extended with necessary amendments in the constitution. The second option is for the Ministry of Justice to initiate amendment in the National Elections Act that would give the elections commission the power to postpone elections. The third option is whether the elections commission would be able to use, although legally weak, the provisions in Section 14 (2) (j) of the National Elections Act to postpone general elections. Given the time pressure to take legal action to postpone general elections by the end of March 2015, the ruling of the Supreme Court on the general elections would be the best option. Without adopting any of three options, the conduct of general elections in South Sudan on 30th June 2015 as set by the elections commission is not postponed.

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