South Sudan: Towards Free and Fair Elections
For the last couple of weeks, there emanated statements from the President of the Republic and members of his party, SPLM-IG, that the general elections in the country will be held in 2023. The First Vice President who also doubles as the Chairman of SPLM-IO was also reported in the media as objecting to the conduct of the elections in 2023 because certain critical tasks of the Revitalized Agreement have not been implemented. This article attempts to consider the challenges facing free and fair elections towards the end of the transitional period and offers ways of how to overcome them.
Lack of political will in the implementation of the Revitalized Peace Agreement right from the beginning led to the extension of the Pre-Transitional Period twice, in May and in November 2019, to make it a total of 17 months and 10 days instead of the 8 months stipulated in the Agreement. This lethargy in implementing the agreement continued into the transitional period. To date, almost two years into the Transitional Period, all the tasks that should have been implemented remain outstanding and the Parties to the agreement are still busy forming the States’ governments; tasks that should have been completed during the Pre-Transitional Period.
The yet to be implemented activities include the establishment of the Necessary Unified Forces (NUF) which activity was carried over from the Pre-Transitional Period. If the past is anything to go by, this is a very critical benchmark for the sustenance of peace in South Sudan. A national army and national other organized forces are essential so as to gain the confidence of the citizens some of whom were actually victims of government’s armed formations and ran away from them to seek UN’s protection in the Protection of Civilians Sites (PoCs) and refugees’ camps. The NUF was also to provide security for the entire election process.
There is little doubt that the implementation is being deliberately delayed as far as possible in order to achieve one of two possible scenarios, either that the elections are conducted without fulfilling the requirements that will ensure free and fair elections, or failing to conduct the elections, the Transitional Period would be extended with the same actors in charge. In both cases one particular party in the agreement would consolidate its grip on power, even at the risk of igniting another
violence if the outcome of the elections is contested. None of these scenarios should be allowed to pass; at least not in the way those planning for them would want.
To begin with, one is not aware of an agreement between the Parties to conduct the elections in 2023. Since the Transitional Period commenced on 22 February 2020, then according to R-ARCSS, the elections must be conducted on 22 December 2022. For sure, even if all the good faith in the world descends on the Parties, the implementation of all the remaining activities of the peace agreement will not be possible in the remaining one year to the time to conduct elections, two months before the end of the Transitional Period. Since, general election is the preferred way to change the government and break the current vicious circle in South Sudan politics, attention should focus henceforth on how to carry out a free and fair election in the remaining 12 months. Elections where no Party will cry foul and pull the country back to war. With this understanding in mind, the priority should be how to conduct the elections and implement the aspects of the agreement related to or have a bearing on the conduct of a free and fair election. The rest of the agreement activities will have to be implemented by the elected government.
The following is a proposal on how to proceed in the remaining one year with the implementation of critical activities so vital for the conduct of the elections. It must be emphasized from the outset that the proposal must be taken as an integrated package. Leaving out any of its elements will render it meaningless.
In the current situation where the Parties have failed to implement the reforms needed in order to create impartial government institutions, it is doubtful to find a pool of impartial civil servants to entrust with being the body to run the elections. Hence, the only available option is to have the elections conducted by an elections commission whose membership shall include international bodies and countries. A similar situation obtained in Sudan when its first elections in 1953 were conducted by an international Commission chaired by a diplomat from Indian and included representatives from UK, USA and Egypt in addition to the three Sudanese members.
Activities related to or have a bearing on the elections
These are the activities in the Agreement that will help create a conducive atmosphere for the conduct of a free and fair election.
1- Adoption of the Constitutional Bill prepared by the NCAC that incorporates R-ARCSS into the Transitional Constitution of South Sudan 2011.
This incorporation should have been completed within the Pre-Transitional Period. The new Transitional Constitution is pivotal as it enshrines important principles agreed upon by the Parties to the Agreement. It should be promulgated not later than the end of February 2022.
2- Permanent Constitution
The constitution-making process is dealt with in Chapter VI of the agreement. Articles 1.20.5 and 6.4 make it clear that it is on the basis of the permanent Constitution that elections will be held. According to Article 6.4, this process shall be completed within two (2) years of the Transitional Period. This means that it will not be possible to have such a constitution in place in the remaining time to the elections. A transitional constitution based on R-ARCSS can be tolerated to be the basis of holding the upcoming elections. South Sudanese can take their time after the elections to work out a permanent constitution.
3- Demilitarization of the Civilian Areas
The troops of the Parties to the Peace Agreement should have vacated the civilian areas immediately upon the signing of the Agreement. However, SSPDF is still occupying some villages and other civilian areas. The demilitarization of the civilian areas is necessary so that the civilians move back to their homes. The vacation of the civilian areas must be completed before the end of January 2022.
4- Resettlement of the IDPs and refugees
As soon as the civilian areas are vacated, the IDPs and refugees will be encouraged to go back home. This is a continuous process to begin early February 2022.
5- Provision of security to the population
Since the unified police is not in place yet, the Regional Protection Force (RPF) within UNMISS should initially be tasked to provide protection to the civilian population that do not trust government’s security organs. In the meantime, unified police on the level of the State will be trained to take over from UNMISS at a later stage upon graduation. This task should begin immediately.
6- The Judiciary
The judiciary plays a central role in ensuring that elections are free and fair. It adjudicates on all the complaints arising from the conduct of all aspects of the elections. Therefore, it is absolutely necessary to have an independent, impartial and credible judiciary in the country.
Here a number of interrelated judicial activities must be completed in time for the elections. These are:
(a) Formation of the ad hoc Judicial Reform Committee
The JRC is provided for in Articles 1.17.3 and 1.17.4 and should have been formed in the first three months of the Transitional Period. The JRC must be formed before the end of January 2022 to complete its work within 6 months, that is, before the end of July 2022.
(b) Review of the Judiciary Act
This will be in light of the recommendations of JRC. The review should begin before the end of August 2022 to be completed before the end of November 2022.
(c) Establishment of the Constitutional Court
This is in accordance with Article 1.17.7. The Constitutional Court has the sole authority to adjudicate on all matters connected with the interpretation and application of the Constitution. The legislation on the Court has to be completed before the end of April 2022. Its members are to be instituted immediately thereafter.
7- The Population Census
Article 1.2.14 mandates the RTGoNU to conduct a National Population and Housing Census before the end of the Transitional Period. This practically means that the results of the census should be out before the commencement of the elections process to guide the demarcation of the constituencies. The remaining time to the elections of 12 months may not be sufficient to conduct a credible and dependable census, especially that millions of South Sudanese are still internally displaced or are refugees. Therefore, the census has to be carried forward and the constituencies be demarcated on the basis of extrapolating the 2008 census results.
8- Laws that need to be in place before the elections
The Political Parties Act and Elections Act should be in place before the end of February 2022 so that the Political Parties Council and the Election Commission are formed not later than the end of April 2022.
9- Conduct of the elections
Many steps in the election process such as the demarcation of constituencies, registration of voters, preparing ballot materials, etc., would be completed in good time before voting commences on 22 December 2022 and the final results are out no later than on 22 February 2023.
These are the barest minimum activities that can be carried out credibly for free and fair elections to take place on 22 December 2022. Even here, it is assumed that the Parties will implement the remaining tasks in good faith, something that has been missing throughout the last three years and three months. It is hoped that their attitude will change so that the implementation proceeds smoothly. However, if the Parties continue to drag their feet and miss the deadline for conducting elections, then extending the transitional period under the same Parties will be tantamount to rewarding obstruction of implementing the agreement and giving them in a platter what they had planned to achieve through the obstruction. It is that obstruction and for precisely buying more time in power that led to the current failure to implement the agreement on time. It is one thing to extend the period for someone who has really tried hard to implement the agreement but for reasons beyond his/her control could not meet the timelines, and another for one who was deliberately obstructive to get more time in power. No achievement can be expected from the last type of person even if the period is extended indefinitely. Therefore, if the above minimum requirements are not met to hold free and fair elections, the only alternative would be to extend the transitional period but to be run by a transitional government of technocrats. In addition to the usual functions all governments exercise, their main task would be to oversee the conduct of the elections within 18 months. In this period, the political parties should prepare themselves to take part in the elections.
Since the Comprehensive Peace Agreement brought peace to Sudan in 2005, South Sudan has been under five transitional periods (2005-2011, 2011-2013, 2013-2016, 2016-2018, and 2018–present) under the rule of the SPLM. Except for the first transitional government that was part of Sudan, none has fulfilled its task to the satisfaction of the South Sudanese. Initially, at independence, it was expected to have one transitional period (2011-2015) that would have culminated in free and fair elections. However, a power struggle within the ruling party caused a bloody civil war in December 2013. That war was brought to an end through an IGAD-mediated peace agreement based on power-sharing between the antagonists in 2015. A new transitional government was formed in April 2016, only to collapse and violence resume less than four months later.
months later. Another mediation by IGAD to end the new and more widespread war brought back a similar agreement in 2018. Our bitter and hard experience has clearly shown that the extension of the transitional period under the same antagonists who are addicted to failure is hardly an experience to contemplate repeating. The vicious circle must be broken.
In the remaining one year to the time for conducting elections as stipulated in the Revitalized Peace Agreement, it is still possible to conduct such elections. However, that will be according to a timetable that assumes good faith among the Parties, something that has been totally absent in the last three years and three months. Human beings are capable of pulling surprises but judging from the past experience this is unlikely.
Should the Parties fail to conduct the elections two months before the end of the Transitional Period, then the Parties on their own or through nudging from friends of South Sudan and the regional and international institutions should dissolve the current Transitional Government of National Unity, extend the transitional period for a period of 18 more months for the elections to be conducted and allow a new transitional government of technocrats to be instituted to oversee the conduct of these elections. This transitional government of technocrats will then hand over power to an elected government.
Author: Dr. Lam Akol