Deferred constitutionality, constitutional crisis and South Sudan’s compromise demo(n)cracy

In December 2013, a political dispute within South Sudan’s ruling party, the Sudan People’s Liberation Movement (SPLM), escalated into an armed confrontation in Juba involving forces loyal to President Salva Kiir and those loyal to former Vice President Riek Machar. Following months of internal conflict (largely based on ethnic and identity politicisation), approximately more than 1.5 million people have been internally displaced, over 500,000 have fled to neighbouring countries and about 4 million people are at risk of food insecurity.[1] Razing, destruction of civilian property, use of rape (women, girls, boys and men), torture, execution style killings, forced disappearances are at an all-time high. More than 10,000 people have been killed; more than 12,000 children have been and continue to be inducted into armed forces and groups.[2]
Recent fighting has put another 650,000 people at heightened risk.[3] Through the convoluted lens of an old, deeply bitter narrative of ethnic rivalry between Dinka and Nuer this political dispute has been exacerbated into a civil conflict by a range of complicated unresolved political, economic and social issues. The polarisation of ethnic communal defence mechanisms into armed groups, their manipulation by powerful elites, ethnic fragmentation and the intolerance brought by conflicting narratives resulting from political and military fragmentation pose risk for a deeper, widened war, with serious regional, humanitarian and political consequences. The internal conflict has raged on for more than a year, with all negotiation efforts to find peaceful resolutions hitting a deadlock, whilst mediators claim lack of commitment from both leaders.
The AU resolution has called for the expansion of mediation efforts to include South Africa, Chad, Rwanda, Algeria and Nigeria. They also threatened sanctions as they are unhappy with the Intergovernmental Authority on Development (IGAD) peace process so far. The AU resolution has in fact urged the sanctions committee to begin to designate individuals and entities responsible for perpetuating the situation as per the United Nations Security Council Resolution 2206 of 3 March 2015, with the aim of taking action against them.[4] The AU Peace and Security Council (PSC) went further to request the chairperson of the AU Commission to take the necessary follow-up measures including formal communication of the PSC decision to the United Nations General Secretary, and through him the United Nations Security Council.[5]
The government of South Sudan has laughed off the call by Riek Machar for President Salva Kiir to resign. In an SABC radio interview former Vice President Machar claimed the term extension for the current president whose term came to an end on midnight 9 July 2015 is illegaltherefore demanding Kiir’s resignation.[6] The vice president also called for a caretaker government to establish peace and prepare for elections as opposed to having a transitional government. As per the provisions of the 2011 Transitional Constitution of the Republic of South Sudan, article 100 provides for the tenure of the office of the president of the Republic of South Sudan. The provision sets the tenure of the office of the president of the Republic of South Sudan to four years, commencing from July 9 2011. This automatically means that President Kiir’s tenure expired on 9 July 2015.
The contention lies in the constitutional lack of provision for a term limit for the president, and as was announced sometime in March by President Salva Kiir, the June elections have been postponed and his term has been extended by parliament through constitutional amendment for another three years. In fact, parliament and the Constitutional Review Commission also extended their terms by three years.[7] It was claimed that the proposal to extend Kiir’s and parliament's terms was aimed at avoiding any power vacuum in the event that the government failed to reach a permanent deal with rebels.[8] But an opposing view has been that the best way to extend the constitutional legitimacy beyond July 9 is through a peace agreement that establishes a transitional government of national unity.[9] The idea of parliament altering a constitutional mandate without involving the electorate has been vexing at best.[10]
For a country that is still unstable, riddled with conflict and volatility, suggesting elections might not be the best option, in fact they could trigger further violence and bloodshed. The culture of militancy and violence, the proliferation of small arms, the ethno-politicisation of issues, and the personalisation of political disagreements have to be resolved before elections can take place. In fact, transitional processes (including transitional social, political, cultural and economic justice) must take place first. These have to be characterised by the cessation of hostilities, holding both parties to the conflict responsible, including keeping such parties out of the transitional government.[11] Reparations to victims of the violence must be properly done, especially addressing the issue of cultural and military violence targeted at women.[12] Demilitarisation (including disarmament, demobilisation and reintegration) of the South Sudanese society, resettlement of Internally Displaced Persons (IDPs), the rebuilding of rule of law infrastructure and the strengthening of institutions related to such must also be prioritised.
South Sudan needs an inclusive internal self-determination, the political self-determination achieved on the independence of South Sudan has obviously not been adequate to sustain it as a nation. The young state also has to adopt and ratify as well as domesticate and commit to international law systems related to human rights, humanitarian law, refugee and international criminal law, which will safeguard its population and spell out accountability for perpetrators of heinous crimes. It must clarify the status of international law within its domestic and constitutional law, something that it has so far failed to achieve through the current constitution, with the exception of international human rights law.[13] Lastly and importantly, the constitution of South Sudan - which is an important innovative document (providing for democratic governance, separation of powers, a decentralised system of government, and an expansive Bill of Rights) - must be respected and revisited to address any gaps. For instance, the issue of separation of powers must be re-emphasised; the constitution as it stands, is still vague and weak in this aspect, with the president having too much power in supervising constitutional and executive institutions and not having limited terms in office.[14] The president has been said to hold a dominant constitutional position without institutional counterweight.[15]
For obvious reasons it seems the president of South Sudan has sought to extend his term and the constitution does not in essence limit this. With the weak political and security situation in South Sudan, pursuing another term does not seem like a well thought option, neither is it a safe indication of the current administration’s desire to resolve the crisis. The dilemma is whether it is better for Salva Kiir to extend his presidency until a solution to the crisis is found (risking another life- president) to set up a transitional government or to set up a caretaker short term government and immediately get into elections. Whilst term extension is not sitting well with the warring opposition, elections, for obvious reasons do not seem viable either. One thing remains clear from IGAD Protocol [16], individuals identified as responsible for serious crimes in South Sudan will not be eligible to participate in the transitional government and that might explain why both parties are not keen on that important aspect.

* Dr Olivia Lwabukuna is a Research Specialist in the Africa (AISA) Programme, South African Human Sciences Research Council.

END NOTES

[1] South Sudan Humanitarian Project ‘South Sudan Macro-Conflict Analysis: Informing Operating Assumptions of Humanitarian Action Workshop Outcome Paper’ July 2015.See here.
[2] European Parliament resolution on South Sudan (2015/2603(RSP))
[3] ReliefWeb ‘South Sudan: UN says 650,000 at risk due to renewed violence, as Security Council threatens sanctions’ UN News Service 18 May 2015 http://www.un.org/apps/news/story.asp?NewsID=50887#.VZzos8IcT4i
[4] PSC,PR/BR.(DX)
[5] ‘AU threatens sanctions on defiant South Sudanese warring parties’ Sudan Tribune Monday 15 June 2015; See also the 24 March 2015 African Union Peace and Security Council Communiqué, and the 12 May 2015 African Union Commission Chairperson’s Statement on South Sudan
[6] SABC Radio (SAfM) Interview with Riek Machar 16th June 2015 machar
[7] The Transitional Constitution 2011 Amendment Bill of 2015; as per article 100(2) of 2011 Transitional Constitution
[8] Denis Dumo ‘South Sudan parliament extends president's term by 3 years’ Tuesday March 24 2015, Reuters, Juba; See also statement by Thomas Wani Kundu, the chairman of the National Assembly's Information Committee on South Sudan Focus interview
[9] Donald Booth, U.S. Special Envoy for Sudan and South Sudan
[10]Parliamentary Opposition Leader Onyoti Adigo
[11]The IGAD Protocol of the 25th August 2014 specifically provides that individuals identified by the AUCISS (AU Commission of enquiry on South Sudan) as responsible for serious crimes shall not be eligible to participate in the transitional government.
[12]See AU Special Envoy on women peace and security statement on leaked AU CISS Report
[13]Art. 9(3)
[14]Art. 101(b)
[15] The Transitional Constitution of South Sudan 2011: An expert view from outside, available here (‘An expert view’)
[16] Office of the IGAD Special Envoys for South Sudan, 25 August Protocol and Stakeholders’ Positions (Draft I)

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