2015 Elections: The Legal Facts, Political Fictions & Democratic Fantasies
Jan. 07 Featured, Uncategorized 4 comments      

BY: JUMA Mabor MARIAL, JUBA, JAN/08/2015, SSN;

In the 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 head gears.

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 states 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.

Political Fictions
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 lose 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 lean towards joining the other side against the
government.

Fifthly, elections are about asking people to freely select those they
think 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 allowed 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. But…

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 pandora 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 its
plans on course.

Maybe yes, maybe not, but altogether, it should be applauded 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 insistence 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.

Democratic Fantasies
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 think 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.

Recommendations
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 take
place and the government gets 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 advises 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 it 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,
confidence 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.

Conclusion
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 used 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
Trainee Advocate, Juba
[email protected]
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4 Comments

    GatNor
    January 8, 2015 at 5:16 am  

    Any election held without the warring parties reaching a peaceful
settlement of the conflict will not be transparent, fair nor
inclusive. Mechanism for such an election are neither in place and
therefore, this will leave thousands of voters disenfranchised and in
the process the government will have more and more unhappy citizens.
The election should be looked at as another dishonest move on behave
of the government trying hard to frustrate and undermined IGAD’s
mediation efforts. Seeking to legitimized Salva’s grips on power
should be a parliamentarians affair as most would vote to extent
kiir’s rule till peace arrives and that would be the right thing to
do. The constitution is useless and not worth quoting. It neither
protect the country’s territorial integrity, rule of law, the people
nor South Sudan’s foreign interest. The dictator broke it times and
times again, so why not do the readers a favor instead of wasting a
whole paper about the constitution that serves no purpose in practical
terms you are better off citing the 39 laws of Jaang. The world will
not dare accepting any results of tribal election leave alone
accepting the winner to be pronounced as the same Gogrial mass
murdering cowboy(Kiir) of 2013, just put it that way. Remember this
quote “I will always be the president of that country” – meaning South
Sudan(Kiir Addis Ababa 2014). One need not read into that quote. Its
the same as saying screw you, take me out if you can. I don’t think
anyone be stupid enough to look for a voting booth to cast their vote
in hope that its not going to be rigged specially if Kiir is not the
only person on the ticket or let say they have another candidate in
mind that they know would not turn around and or commit mass murder as
Kiir did in 2013 after not long of being sponsored by splm party
stooges into office . God forbid it happened again to a smaller tribe
that can not fight to defend themselves. Kiir’s quote above goes for
everyone(as a bold defiance) in the country including those of his
supporters whose motive is tribal interest and the few scavengers
looking to filled their pockets while Kiir or the tribal thugs deemed
their contribution necessary. The examples are there for everyone who
is following the divide and rule strategies being carried out. Just
who the held does the writer thinks he is fooling referencing such
dishonored constitution about election? The (IGoNU) that Juba is not
accepting is now the best and only token out of this mess to reach
peace, reconciliation and perhaps a lasting unity this should be
abundantly clear for the warring parties, IGAD of which interest is
contrary to immediate peace for South Sudan, & the international
community that actually brought about the CPA leading to referendum
and finally sovereignty of South Sudan.
    Reply       
    Olur Sisto
    January 8, 2015 at 11:18 am 

    Mr. Juma Mabor Marial, your article covered many points
surrounding the issue of holding Elections in South Sudan on 30 June
2015 as declared by Prof. Abednigo Akok Kacuol, Chairman of the
Elections. Secondly, and technically all Political Parties in South
Sudan including the SPLM are not registered. The Political Parties
Council headed by Justice John Onge Kasiba was created, and even
members were appointed, but not swon into office on account of lack of
funds. I also agree with your suggestion that to avoid any political
vacuum under your point number one, the SPLM should make use of its
majority in Parliament to extend the life of the current executive
since they want to remain in power for ever as demonstrated by their
own actions. Insisting with the idea of holding Elections in 2015 is a
clear indication that the government is not prepared to find a
political settlement to the current crisis with SPLM-IO, and therefore
Dr. Riak Machar has the right to maintain his position and pursue his
political agenda.
    Reply       
    Agook Mayek Riak
    January 8, 2015 at 11:59 am 

    Well articulated Juma. Truth telling at difficult times like this
is a revolutionary act. South Sudan willingly chose the path of
democracy, and must do what it takes to remain a democratic nation.
Article 21 of the Universal Declaration of Human Rights states that
elections must be periodic, genuine, organized according to the
universal suffrage. Universal suffrage means that there can be no
burdensome impediments to registering or voting for any citizen, with
such legitimate requirements. The ideal is to have maximum
participation in the elections. In a nutshell, the proposed elections
will be short of that. So, “NO” to the proposed 2015 elections.
    Reply       
    False Millionaire
    January 8, 2015 at 12:43 pm 

    Mr Juma:

    Wishing you a very happy new year,how so I wish we could clone you
in many Jumas?That would get us out of troubles n very quickly.Sir,you
are living up to the image of a true muor anyaar.The light will shine
on us one day through the darkest circumstances that our country n
society are in.That’s only becouse we are bound to entertain hopes of
future as among us we still have brilliantly honest citizens like
you.I totally agree with your article.I find it to be the most
appropriate response to the question of holding elections at this
point of time.Others may come up with counter arquements,but my
position may never differ from yours.Tha’s,”against the holding of
elections in 2015″.

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