Why government is right to postpone elections in South Sudan?
By Luka Biong Deng
The decision of the Council of Ministers to initiate a process of amending the constitution that would allow the postponement of general elections is constitutionally right as per the provisions of the constitution. The elections act like other laws was poorly drafted as it does not give powers to the elections commission to postpone the entire elections and as such the government was legally bound to propose the amendment of the constitution. The timing of the decision was also appropriate as the country was posed to a crisis of constitutional illegitimacy. Importantly, such a decision will not only give peace talks a chance but it will also allow the current parliament to continue to exist legally and to be able to rectify any peace agreement to be concluded as well as making the necessary amendments in the current constitution in the light of any future peace agreement.
Politically, the government has strategically and smartly handled the elections well. It has established the elections commission that managed to discharge its constitutional obligations by declaring the conduct of elections on 30th June 2015. Despite the enormous changes facing the conduct of elections, the government took strategic move to support the decision of the elections commission. This expressed intention of the government to support the conduct of elections has worked very well in creating popular demand by all stakeholders such as civil society, political parties and international community to demand for postponement of elections. In fact the government has succeeded to ensure its constitutional legitimacy that will hardly be challenged by any if it follows the provisions of the constitution.
The real question is what is expected from the parliament to amend in the current constitution so as to allow for postponement of elections and to create conducive environment for the conduct of the next elections? First the proposed amendment should clearly define the extended period of transitional period. Interestingly and with abundance of competent lawyers in the cabinet and parliament, the current constitution does not clearly define the transition period but it is implicitly referred to in the article that defines the expiration of legitimacy of government by 9th July 2015.
Secondly, the two years proposed by the government for the conduct of the next elections may need to be reviewed carefully. It seems the government is subscribed to the narrative that the conduct of population census is necessary for determining the number of constituencies as per provisions of Article 194 of the constitution. It has been shown from cumulative wealth of evidence that population census is not the necessary prerequisite for determining the number of constituencies and it should not be politicized as a technical exercise. Also a credible conduct of population census would require at least three years. The lawmakers may need to review the provisions of Article 194 with the view that the number of constituencies will, inter alia, be determined by the outcome of population census. This will allow the elections commission to use other mechanisms such as the results of last population census as the basis for determining the number of constituencies. If the conduct of elections is delinked from the conduct of population census, the proposed period of two years may need to be reduced to one year.
Thirdly, it is a common practice that the decision to postpone general elections rests with the election commission that is expected to be an independent body. The power to postpone general elections should not be left to the government because of conflict of interest. The current elections act does not give such powers of postponing the entire elections to the election commission and the lawmakers should seriously consider of how to limit the powers of the government to interfere in the future general elections. The lawmakers can either amend the elections act or to provide a provision in the constitution that gives the power of postponing elections to the elections commission.
Fourthly, as the tenure of the current government will be extended, the parliament may need to define the mandate of the caretaker government at national and state level. For example, the caretaker President may need to be given powers to redeploy the caretaker governors to states that are not states of their origin as successfully tried before by Dr John Garang during the pre-interim period of the CPA. This may contribute in creating conducive environment for fair and credible elections in the states as well as solidifying the sense of unity.
The other question is whether the government will be interested to conclude peace agreement since its legitimacy will be extended? One may see four factors that may push the government to conclude peace; first the economic conditions, second the report of AU Commission of Inquiry, third the Arusha agreement and fourth the next and the last round of peace talks in Ethiopia. These factors can provide pressure or incentive for the government to conclude the peace agreement in the next round of peace talks. Although the government is militarily well equipped, the deteriorating economic conditions will make the military option not a viable option in putting an end to the current civil war. As the government may have exhausted all options for internal and external borrowing and coupled with depleting foreign reserves, the government may be left with economically unpopular option of simply printing money that will push up the prices of basic commodities with far reaching political consequences including the public unrest.
Although the government is happy that the release of the report of the AU Commission of Inquiry has been delayed, it is apparent that the report is likely to be released after the next and final round of peace talks in Ethiopia. The government is aware that the report will eventually be released and that may not only damage its popular legitimacy but some of its members may face criminal charges.
The Arusha SPLM Reunification Agreement provides a basis for the SPLM in government to take a lead in unifying the SPLM under the leadership of Cde Salva Kiir by taking practical steps in implementing the agreement as well manifested in its endorsement by the SPLM National Liberation Council. At least the Arusha Agreement has strengthened the political legitimacy of government and the SPLM should be keener than other factions of the SPLM to fully implement this agreement. Although IGAD, especially Ethiopia and Sudan, have shown lukewarm attitudes towards Arusah Agreement, the SPLM in government should take further initiative of inviting the SPLM former detainees to return back to South Sudan and to work jointly in implementing the Arusha agreement.
As they have been gradually marginalized in the peace talks in Addis Ababa, the SPLM former detainees may run the risk of being irrelevant unless they put their remaining political weight in joining hands with the SPLM in government to implement the Arusha Agreement. As Ethiopia felt marginalized in the Arusha Agreement and with Sudan having strategic interest of seeing SPLM divided with the SPLM former detainees isolated and coupled with uninformed decision by some members of international community not to support Arusha Agreement, IGAD will not be keen to use Arusha Agreement to enrich the next round of peace talks. Juba is aware that the next round of peace talks will be detrimental to its legitimacy and it must play its cards very well.
Juba has been loosing its neighbours rapidly, particularly after the visit of President Salva to Egypt. Although Juba may know better what they have achieved with such visit, it is apparently clear that Juba has angered Ethiopia, Uganda and Sudan. Paradoxically Kenya and particularly its Vice President seems to be diplomatically closer to the SPLM-IO than to Juba. Uganda seems to have opted to diversify its political and diplomatic investment in South Sudan by engaging and increasingly extending support to the SPLM-IO. Ethiopia is getting closer to Sudan over the Renaissance Dam and probably with SPLM-IO since Juba has started showing diplomatic uneasiness towards Addis Ababa. Sudan seems to have taken a strategic and diplomatic choice to work closer with SPLM-IO than with Juba in pursuing its security interests in South Sudan. International community and lately China with its long standing good relations with Sudan have not been impressed by the performance of Juba. With such increasing regional and international isolation, Juba may need to take the next round of peace talks seriously. The last IGAD proposal on power-sharing may need to be carefully negotiated in light of what heads of IGAD agreed on 25th August 2015 including the agreement on creation of a position of Prime Minister.
In case no peace agreement is concluded in the next round of peace talks, there is a need for the SPLM in government to initiate a national dialogue on what type of government needs to be put in place to manage the extended transitional period till the next elections. One would expect the SPLM in government to initiate a process of putting its house in order on the basis of Arusha Agreement and to take the lead in building national consensus with other political parties and civil society guided by a comprehensive proposal for forming a government of national unity. The government will certainly gain more in concluding peace agreement than any other other stakeholders.
The author is the Director, Centre for Peace and Development Studies, University of Juba, a Global Fellow, Peace Research Institute Oslo, an Associate Fellow, Carr Centre at Harvard Kennedy School. He can be reached at [email protected]