Will South Sudan be ready for its first democratic elections comes 2023?

Author: Garang Yach James
South Sudanese Political and security analyst and PhD Student, University of Juba, South Sudan

Summary

This article discusses key requisite benchmarks for the success of first democratic elections towards the end of the Transitional Period in 2023. The author argues that the conduct of credible democratic elections is conditional on certain processes being successfully completed. The article posits that in lieu of faithful implementation of these processes, the conduct of first national elections in South Sudan is likely to birth mock democracy and would be a recipe for recycling of conflict. The article finally gives three recommendations as a path out of the series of transitional governments.

Requisite benchmarks for democratic elections in South Sudan

Since independence, South Sudan has never conducted general elections in its capacity as a sovereign State. Instead, the country has experienced multiple communal conflicts and civil wars which threatened prospects for democratic elections. In attempts to establish peace and security, the two agreements namely; ARCSS and R-ARCSS  expected to transition the post-conflict state to democracy have been signed but none of the said agreements has transitioned the state to secure and peaceful South Sudan. To do this, the Revitalised Transitional Government of Nation Unity( RTGoNU) stands a chance of leading a successful transition provided that the following necessary benchmarks are achieved.

Stabilization of security

Barely two years after assuming its place and recognition among the United Nations as a sovereign and an independent state, South Sudan descended into a dreadful war that claimed over half a million lives, displaced about 4 millions refugees and  IDPs to the neighbouring countries and former UNMISS run POC sites.  Since then, the security situation in the country continued to deteriorate until the signing of 21 December 2017 Cessation of Hostilities Agreement and the Revitalized Agreement on the Resolution of Conflict in the Republic of South Sudan (R-ARCSS) on 12 September 2018. Three years since the signing of the R-ARCSS and its subsequent stalled implementation, the security situation in the country remains highly fragile albeit holding of the Permanent Ceasefire.

The R-ARCSS requires the RTGoNU to implement the Transitional Security Arrangements (TSA) that involve the security sector reforms and the formation and professionalization of the national army. Owing to the difficulties surrounding the TSA, the parties agreed to train 83,000 Necessary Unified Forces (NUF) to be deployed antecedent to the completion of Security Sector Reform (SSR) and reunification of the remnant forces in the cantonment areas as required by the R-ARCSS.

Up to date, the first batch of the NUFs are into two years of their training and the RTGoNU is yet unable to graduate them despite the critical importance of their deployment to ensure security across the country. The RTGONU cites lack of firearms and other military logistics necessary for the new force. It is worth stating that South Sudan is under United Nations embargo that extends to 31 May 2022 according to UNSC RES/ 2577/ (2021).  The Embargo which prohibits it from procuring arms.

Because the RTGoNU has not made any meaningful headways toward unifications of forces, Disarmaments, Demobilization, Reintegration (DDR), training and graduation of forces, and their eventual deployment. There is still apprehension from some of the former fighting forces, expressed mistrust and justified fears for possible breach of the terms of R-ARCSS and return to war despite repeated “no return to war” assurances from the President and the First Vice President.

Endemic communal conflicts present another angle of security complexities that may inhibit the preparations of electoral activities at the subnational level. Comprehensive Disarmaments, Demobilization, Reintegration and Reinsertion (DDR-R) of the ex-combatants to the societies become another critical requisite for peaceful co-existence.

President Kiir had earlier argued that the scheduled 2023 general elections will be conducted as required by the agreement. In what appeared to be a response to the President, the First Vice President(FVP) and SPLM-IO leader argued that “for us to have fair, free, transparent elections, you must have security forces who will protect the state, its people and that will not interfere with the electoral process.” The FVP further expounded that for elections to happen, the TSA  must be completed in the shortest possible period.

For the conduct of democratic elections towards the end of the Transitional Period in 2023, the security situation must be stabilized, and the environment made conducive for the conduct of free and fair national elections. Stabilization of the security is therefore, condition sine qua non for the conduct of credible democratic elections in post-conflict South Sudan.

Repatriation of refugees and return of IDPs

The millions of South Sudanese refugees in the neighbouring countries and others internally displaced by the December 2013 and July 2016 wars could constitute important electorates in the upcoming national elections. The R-ARCSS requires the repatriation and resettlement of war displaced IDPs, reparations of the war affected individuals, provisions of basic services to the returnees and security assurances for their safe stay in their constituencies.[1] Credible elections cannot be carried out in oblivion of the glaring fate of the prospective voters displaced from their villages. It is worth highlighting that there are many counties and Bomas especially in the war-affected regions which were vacated during the war. These areas are still uninhabited even with the formation of the RTGoNU and return of relative calm thanks to the R-ARCSS.

Since it is said that every vote counts, credibility and inclusivity of the elections should mean participation of refugees and IDPs. The government lacks adequate resources considering competing priorities. Meanwhile, the donors and humanitarian agencies have not supported the return and resettlement of the refugees and IDPs.

Criticality of the Permanent Constitution Making Process to elections

The RTGoNU is mandated by the R-ARCSS to initiate and oversee the Permanent Constitution Making Process in the country. The Constitution Making Process(CMP) is the transitional period activity that is so central and prime to the reforms stipulated in the R-ARCSS. The agreement purports to address the root causes of conflict by effecting reforms that deliver services and social justice. One of the causes of the current conflict and social disorder in the South Sudanese society is the “power-people relationship” which is inadequately defined in the Transitional Constitution of the Republic of South Sudan, 2011 (as amended) (TCRSS). The Permanent Constitution is going to be a formidable legal framework that may enable democratic dispensation in the post-conflict South Sudan. The current TCRSS, 2011 (as amended) is in the center of dispute and bears blame for the commissions or omissions responsible for the 2013 conflict. The Permanent Constitution is envisaged to define people-power relations; regulate executive powers, clearly define rights and duties and make the government accountable to its people inter alia. As a supreme legal framework of all other laws and the bedrock of democracy, the Permanent Constitution is a requisite for elections in a transitional society.

To date the CMP lags behind schedule yet, its completion is a requisite for the election related laws, critical reforms in the security, economic and financial, rule of law sectors and legislative branches of the government. According to the R-ARCSS, the CMP is to take 24 months from the formation of the RTGoNU. In practice, the process is to be completed before the end of the Transitional Period which is 36 months from the date of RTGoNU’s  formation, that is 1^st day of  27 months of the Transitional Period.  It is a yardstick of democracy and development in a country.  Delays in its completion is an implicit delay of the elections related laws that must be aligned to the constitution to permit the conduct of the general elections. Given the resource and time factors, it is therefore, not possible for the TGONU to beat the timeline of the permanent CMP and carry out elections as stipulated in the R-ARCSS comes 2023. The Permanent Constitution becomes crucial to the process of credible elections, in particular, and transition to democracy in general.

Review of election related laws and reconstitution of National Election Commission

The National Constitutional Amendment Committee (NCAC) is tasked with the drafting or reviewing of national legislations especially the national security laws so that their provisions conform to the terms of the R-ARCSS. The changes in the security sector are deemed to bring about reforms that the R-ARCSS endeavours to introduce in order to democratise the sector. The amendments would open up political space for politicians and citizens alike to engage in political activities prior and during elections.

Open and free political space legitimizes the electoral processes and gives credibility to the organizing body to press ahead and conduct free and fair elections. The NCAC is to review the Political Parties Act 2012 and align it to international best practices for the conduct of  democratic registration of political parties. This is followed by the reconstitution of the Political Parties Council not later than 4 months into the Transitional Period. On the same note, the National Election Act, 2012 should have been amended to conform with the provisions of the Agreement not later than 7 months into the Transitional Period. The review process should have been followed by reconstitution of the National Election Commission (NEC) in a period not later than one year after the commencement of the Transitional period. Then within 60 days before the Transitional Period ends NEC should organize elections in accordance with the provisions of the permanent Constitution.

All the above critical benchmarks for the conduct of free, fair and credible elections have not been initiated and yet the remaining time for these bulk of activities to be completed is running out. It is my argument that the election processes cannot commence when critical reviews of the election related laws are not done before the Transitional Period ends.

Conduct of population census

Although it is not a critical benchmark for the conduct of democratic elections, the conduct of population census is very important for  allocation and demarcation of electoral constituencies. The last population census was conducted in 2008 under united Sudan before secession of South Sudan. That census gave way for the 2010 Sudan general elections in which the Transitional National Legislature was elected based on constituencies determined by the 2008 population census. Eleven years later, the country needed its first ever population census to determine its population and allocate electoral constituencies. The current Reconstituted Transitional National Legislature (TNL) is composed of 650 members from former TNL and new appointees from other parties to RTGoNU. The Permanent Constitution, the reviewed election Act 2012 and the would-be new population census will determine the new constituencies and the commensurate representatives to the national legislature.

Conclusion

Given the rationale argued in this article, it is highly improbable that South Sudan shall head to democratic elections towards the end of the Transitional Period. Hurrying the process in order to beat the deadlines and check the boxes in the R-ARCSS matrix is likely to yield unwanted results. The parties to the R-ARCSS, the regional blocs such as Intergovernmental Authority for Development and African Union and the TROIKA should not be so concerned with meeting timelines but ensure the strict implementation of the critical benchmarks. The R-ARCSS provides opportunity for constitutional and institutional reforms so that if its terms are implemented in letter and spirit, they might provide an opportune democracy, stable and long-lasting peace in South Sudan.

Recommendations

• The TNL should endeavour to review and pass the election related laws and reconstitute the National Election Commission to set a stage for elections preparation.
• The parties to the Agreement and the International Community should not hurry the implementation of the critical activities of the Agreement such as TSA, CMP, repatriation of the refugees and IDPS, conduct of population census and national elections when proper arrangements have not been completed.
• In the event that key benchmarks have not be accomplished, it is in the best interest of peace and stability of the country to extend the Transitional Period till such a time that security is stabilized, permanent constitution is made, and necessary laws are reviewed and passed to ease the conduct of credible elections and transition to democracy.

[1] R-ARCSS (2018)  Article 3.1.2.2, 1.20.7

About the Author:

Garang Yach James is a South Sudanese Political and Security analyst and a PhD Student at the University of Juba. The title of his PhD thesis is “Human security transcends national security in the horn of Africa: A comprehensive analysis of state’s manning safety infrastructure in South Sudan” He can be reached on email: yachgarang1978@gmail.com