SOUTH SUDAN: WHO HAS THE CONSTITUTIONAL AUTHORITY TO POSPONE ELECTION?

By Dong Samuel Luak

February 15, 2015 (SSB) —  Who has the constitutional authority to postpone elections, to which such power could be delegated, and what legal limitations exist to such a postponement.

While the Executive Branch has significant delegated authority regarding some aspects of election law, this authority does not currently extend to setting or changing the times of elections.

Everyone was taken by surprise yesterday Friday 13, 2013 when the spoke person of the government Michael Makuei announced through the National television SSTV that South Sudan’s general elections set by the Commission for 30 June 2015 is postponed and the tenure of the Office of the President of the Republic of South Sudan is extended up to 2017. Reasons for the postponement of the elections and extension of the term of officer of the President were among others giving Peace a chance.

This announcement is the latest of series of the violation of the Constitution by President Slava Kiir since he assumed office on July 9, 2011. Where did the council of ministers an executive branch of government drive its Constitutional mandate to postpone or cancel the election and extend the term of office for the President until 2017 through a memo presented by the Minister of Justice?

This is of course a big joke, what grantees are in place that there will peace in the near future? The National Electoral Commission I believe is aware that there war in South Sudan, they are also aware that Peace is a priority, but President Salva Kiir through his cabinet approved their budget.

Seriously?

The decision came in less than few days for the peace talks to resume in Addis Ababa on February 19,2015 under the mediation of IGAD, is this not the same Salva Kiir who rejected all attempts for peace and reconciliation spearheaded by IGAD since January 2014? Is this not Salva Kiir who continued to drew redlines? Who hired the Ugandan Army to kill and massacred his own citizens, is not him who committed war crimes and crimes against humanity against the people of South Sudan?

Where was this feeling of urgency to achieve peace for the last 13 months of conflict? Why pushing the electoral commission to announce the elections dates in the first place? Salva Kiir floated the idea of the postponement in several occasions citing insecurity. But nevertheless dates for elections were set.

What happened if the peace isn’t achieved or sign by March 2015, this latest decision by the government of Salva Kiir in Juba is another attempt to entrench and consolidate dictatorship in South Sudan at the expense of Peace and the suffering of its citizens? Will the SPLM in opposition accept the extension of the tenure of the President?

South Sudan Electoral Commission is an independent body as per Section 9 of the Electoral law 2012 that read as follow:

1. That the commission shall be financially and administratively independence and shall perform its functions with integrity, transparency, impartiality without interference from any authority.

2. Members and employees of the commission shall perform their functions according to law. They shall be independent and shall not be influenced by Government, state or public officers, political parties, candidates or any other person or body. The powers of the Commission are further stipulated in Section 14 Functions and powers of the Commission

j. Postpone any electoral procedure or event for any election or referendum when warranted by the situation in accordance with provisions of this Act and determine new dates for carrying out such events

V. Declare dates for elections or referenda polling and issue electoral calendars.

It’s a sole responsibility of the Electoral Commission to amend the date of elections, not the council of ministers as per section15. Amendment of the date, which reads as follow:

(1) Whenever an election is to be held the commission shall announce and publish in the Gazette and the print media a notice of the holding of the election at least six months before the date of the election.

This provision was adhered to accordingly by the electoral commission and announced that the election is scheduled for 30 June 2015. As for the proposed amendment of the constitution by the minister of Justice to safeguard the legitimacy of the President in accordance with Article 199 Amendment of this Constitution, it reads as follow:

The Constitution shall not be amended unless the proposed amendment is approved by two-third of all members of each house at the national legislature sitting separately and only after introduction of the draft amendment at least one month prior to the deliberation.

As a known fact the Office of President Salva Kiir will be vacant in accordance with Article 102 Vacancy of the Office of the President

(a) Expiration of the term of office or

Article 100 Tenure of the Office of the President

(1) The tenure of the office of the President of the Republic of South Sudan shall be five years.

(2) Notwithstanding Article (1) above, during the transitional period the tenure of the office of the President of the Republic of South Sudan shall be four years from July 9, 2011.Coming to an end as per the Article 97 The President, unless a general election is held.

(1) There shall be a President for the Republic of South Sudan who shall be directly elected by the people of South Sudan in general elections according to this Constitution and the provisions set forth by the National Elections Commission in accordance with electoral law.

For the proposal of the minister of Justice to be Constitutional he must apply the provision of Article 68 Session of the National Legislature, since our legislature is on recess

(3) The National legislature or each House may convene an emergency or extraordinary session on the request of half of its members or upon a call from the President.

The speaker of the Parliament upon the request of the President has called an extraordinary meeting of the parliament on February 19. 2015 for the proposed amendments of the Constitution by the minister of Justice. But how come the postponement and extension of tenure of office take place before the approval of the two houses?

Well that is South Sudan. The Supreme Court must intervene through the petition of the opposition political parties and protect the Constitution.

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