By Gama Hassan Oscas
In a controversial move, the Revitalized Transitional National Legislative Assembly (R-TNLA) of South Sudan has recently passed the National Election Act 2012 (Amendment) Bill 2023. This bill, which is now awaiting presidential assent, has far-reaching implications for the country’s democratic process and has sparked intense debates and protests within the nation. One of the most contentious aspects of the bill is the provision that grants the president the prerogative to appoint members of parliament representing geographical constituencies. This opinion piece seeks to provide an in-depth legal analysis of the bill, the debates surrounding it, and its potential impact on South Sudan’s democracy.
The National Election Act 2012 (Amendment) Bill 2023
The National Election Act 2012 (Amendment) Bill 2023, hereinafter referred to as “the Bill,” is a piece of legislation that has significant implications for South Sudan’s electoral process. One of its key provisions is the proposed increase in the number of Members of Parliament (MPs) from 250 to 332. This expansion aims to accommodate a more diverse representation within the National Assembly. The Bill also introduces several mechanisms for representation, including geographical constituencies, proportional representation, and party lists. These mechanisms are designed to ensure broader political participation, particularly by women, youth, and persons with disabilities (PwDs). However, it is the provision that grants the president the authority to appoint 5% of MPs representing geographical constituencies that has ignited fierce controversy.
The Geographical Constituency Appointment Debate
The heart of the controversy surrounding the Bill lies in the question of whether it is appropriate for the president to have the prerogative to appoint members of parliament representing geographical constituencies. Proponents of this provision argue that it allows for a more balanced representation, as the president can choose individuals who are best suited to serve the interests of those constituencies. They contend that it ensures a level of continuity and stability in the political landscape.
However, opponents, particularly MPs from the South Sudan Opposition Alliance (SSOA) and Sudan People’s Liberation Movement-In Opposition (SPLM-IO), vehemently reject this notion. They view the provision as a dangerous infringement on the democratic process. Nathaniel Oyet, a prominent voice against the provision, argued that granting the president such authority undermines the core principles of democracy. He questioned whether appointments could truly be considered elections, stating, “Election must be democratic, if you appoint, is it an election? Is it a democracy? Our constitution says we are a democratic nation, and that means we must go for elections and accept the results.”
The Walkout Protest and Its Implications
Despite the spirited opposition to the provision granting the president appointing powers, the bill was passed with the 5% prerogative intact. This outcome led to a dramatic walkout protest by the SPLM-IO. The protest was led by MPs who believed that the bill’s passage was fundamentally undemocratic. John Agany, the spokesperson of the house, countered the protest by asserting that the bill has already paved the way for conducting elections, emphasizing the importance of South Sudanese citizens choosing their own leaders.
However, it is essential to dissect the implications of this walkout protest. It represents a clear divide within the South Sudanese political landscape, with some MPs seeing the bill as a necessary step towards electoral reforms and others viewing it as a dangerous regression towards authoritarianism. The consequences of this divide may have lasting impacts on the stability and legitimacy of South Sudan’s political institutions.
The Legality Question
Beyond the passionate debates and protests, there is a critical legal question that demands consideration: Is the National Election Act 2012 (Amendment) Bill 2023 consistent with the legal framework governing South Sudan’s electoral process? This question underscores the essence of democratic governance and the rule of law.
First, it is essential to determine whether the bill qualifies as a genuine reform or, as some critics argue, a deformation of the electoral system. The term “reform” implies improvements or positive changes aimed at strengthening democracy. In contrast, a “deformation” suggests alterations that undermine democratic principles. To evaluate this, one must examine the extent to which the provision granting the president appointing powers aligns with established democratic norms.
Democratic Norms and the Role of Elections
Elections are the cornerstone of any democratic system. They are the mechanism through which citizens express their will and choose their representatives. In a democratic society, the electoral process must be free, fair, and inclusive. The essence of democracy lies in the people’s ability to exercise their right to vote and influence the composition of their government.
The Bill’s provision allowing the president to appoint members of parliament for geographical constituencies raises serious concerns in this regard. It deviates from the fundamental democratic principle that representatives should be elected by the people, not appointed by a single individual. While proponents argue that such appointments may lead to better representation, they fail to acknowledge the inherent risks of this approach.
One of the primary dangers is the potential for political bias and manipulation. Appointed MPs may feel indebted to the president, which could compromise their independence and ability to represent their constituencies impartially. This risk becomes even more pronounced in a country like South Sudan, where political divisions and power struggles have been prominent features of the post-independence era.
Furthermore, the provision contradicts the idea of popular sovereignty, a fundamental democratic concept. In a democracy, the ultimate authority resides with the people. When the president has the authority to appoint MPs, it diminishes the people’s power to choose their representatives, eroding the democratic foundation of the nation.
Constitutional Considerations
To assess the legality of the Bill, it is crucial to examine its compatibility with the South Sudanese constitution. Constitutions serve as the supreme law of the land and provide the framework for all other laws and regulations. Any legislation that deviates from the constitution’s principles may be considered unconstitutional.
The South Sudanese Transitional Constitution of 2011, which served as the basis for the country’s independence, enshrines democratic principles and the separation of powers. It establishes a clear framework for the organization of elections and the role of elected representatives. It is within this constitutional framework that the National Election Act 2012 (Amendment) Bill 2023 must be evaluated.
Article 36 (1) of the Transitional Constitution emphasizes the importance of all levels of government promoting democratic principles and political pluralism thus guaranteeing free, fair, and democratic elections. These principles states that “The electoral process shall be based on the democratic principles of transparency, accountability, and inclusivity.” Additionally, Article 51 of the constitution explicitly outlines the separation of powers, ensuring that each branch of government operates independently.
The Bill’s provision granting the president appointing powers directly contradicts these constitutional principles. It undermines the independence of the legislative branch by allowing the executive branch to have significant influence over its composition. Such a deviation from the constitution raises serious constitutional concerns.
It is worth noting that constitutional amendments should typically follow a rigorous process, involving public consultation and, in some cases, referendums. The introduction of a provision that fundamentally alters the electoral process, such as granting the president appointing powers, should undergo careful scrutiny and debate within the framework of the constitution. The process leading to the passage of the Bill should be examined to ensure it adhered to the required constitutional procedures.
International Standards and South Sudan’s Commitments
South Sudan, like many other nations, has made international commitments to uphold democratic principles and respect human rights. The African Charter on Democracy, Elections, and Governance, to which South Sudan is a signatory, underscores the importance of democratic elections as a means of attaining and maintaining power.
Furthermore, South Sudan’s own history of conflict and efforts to establish a peaceful and stable nation underscores the significance of adhering to democratic norms. The international community has closely observed South Sudan’s progress and its commitment to democratic governance. Any deviation from established democratic norms, such as granting the president appointing powers, may raise concerns among South Sudan’s international partners.
In conclusion, the passing of the National Election Act 2012 (Amendment) Bill 2023 in South Sudan has ignited a fierce debate over the country’s commitment to democracy and the rule of law. The provision that grants the president the prerogative to appoint members of parliament representing geographical constituencies has raised serious questions about the integrity of the electoral process and the adherence to constitutional principles.
While proponents argue that such appointments may enhance representation, opponents contend that they undermine the fundamental principles of democracy. The legitimacy and legality of this provision should be carefully examined in the context of South Sudan’s constitution and its international commitments to democratic governance.
Ultimately, the future of South Sudan’s democracy hinges on the extent to which the country upholds democratic norms, respects the rule of law, and ensures that its electoral processes are transparent, accountable, and inclusive. The passing of this bill presents a pivotal moment in South Sudan’s democratic journey, one that will shape the nation’s political landscape for years to come. It is imperative that South Sudan’s leaders and citizens reflect on the implications of this decision and consider whether it aligns with the democratic aspirations of the nation’s people.
The author of this opinion article is an advocate and can be reached on email at: oscarsgama@gmail.com