By Charles K Mark
Sudd Institute, a think tank based in Juba, has identified flaws in the recently passed National Election Act.
In their recently released weekly review report on the act seen by this outlet, the researchers and policy analysts said the election legal framework is marred by practical and operational challenges.
According to the think tank, Section 60 of the Act suffers from a mathematical error that needs urgent attention and amendment by the transitional government of national unity.
“Section 60 states that 50% of representations shall come from geographical constituencies, 35% women, and 15% proportional closed party lists, all of which sum up to 100%,” the report read in part.
However, the Sudd Institute underlined that the act adds 5% of the 332 legislators to be appointed by the elected president.
The think tank analyzed that adding the 5% to the 50%, 35%, and 15% makes it 105%, which the institute believes is an error that must be corrected.
The Sudd Institute also noted that the Act is silent on how to determine the population of South Sudan and the adoption of a permanent constitution as a prerequisite for the conduct of elections.
“Also, Section 61, which prescribes the composition of state legislative assemblies, ought to be amended to reflect the three administrative areas.” The report stated:
Sudd Institute also asked the R-TGoNU to amend relevant sections of the act that affect the three administrative areas.
The research and policy institute further urged the parties to the agreement to develop and incorporate a procedure for appointing 5 percent of the legislators.
“This must be done with due consideration to youth, persons with disabilities, veterans, professionals, and smaller ethnic communities such as Bongo, Kachipo (Suri), and many others,” the report noted.
It further called for a mutual agreement on other practical issues bearing importance to the elections, such as the conditionality of the permanent constitution.
According to the think tank, the population census is supposed to be carried out during the transitional period to provide an accurate population to determine the geographical constituencies.
Although the government spokesperson said a population census is not a prerequisite for the conduct of elections, the think tank argued that it may be necessary for the National Election Act (NEA) to refer to the population to determine geographical constituencies.
And if the country goes to the polls without a permanent constitution as planned during the electoral process, the Sudd Institute warns there will be a legal vacuum, saying holding undemocratic, free, and fair elections could supposedly be challenged in a court of law.
Besides, Sudd pointed out that the electable parliamentary seats are supposed to be 315 out of the proposed 332 to pave the way for the president-elect to appoint the remaining 5 percent (almost 17 seats).
In its recommendation, the Sudd stated that one way to address this contradiction in the act is to follow the legislative intent, which is that the electable seats out of 332 members of the NLA are 315.
“This implicitly means that the 5% (16.6 rounded to 17 seats) of appointed legislators are to be deducted from the total of 332, leaving 315 seats as electable,” the think tank clarified.
The 5% prerogative of the elected president was previously protested by the Sudan People’s Liberation Movement-In-Opposition (SPLM-IO), which walked out of the sitting during the vote to pass the section.
Sudd reminded that elections are a crucial post-conflict democratic transformation initiative, adding that for elections to be fair and credible, there is a need to overcome operational and substantive challenges befalling the election act.
The research entity submitted a number of policy recommendations to guide the ongoing process of elections.
“First, the total of these percentages produces 105 percent, inflating the numerator. This means the article on five percent appointed legislators needs to be properly operationalized in the law.”
The researchers said the law is silent on the procedure of appointing the 5 percent to the parliament but maintained that this practice is found in other countries with clear criteria on the process of appointment.
“Third, the word ‘elected president’ means a president who has been sworn into office as opposed to a president-elect.” They added, “This means the appointment of five (5) percent of the members… shall only occur after elections are over since parliamentary and presidential elections will take place simultaneously. This calls for amendment.”
“Section 61 of the 2012 NEA has not been amended to specify the number of members of the administrative area councils. There are a number of sections of the 2012 NEA that need to be amended to reflect the three administrative areas.”
The elections are expected at the end of the Transitional Period in December 2024, but some provisions in the agreement remain unimplemented.
In September this year, Information Minister Michael Makuei noted that conditions such as the census, the permanent constitution, and the repatriation of refugees that should be done prior to elections had alternatives.
The information minister maintained that the country would use the 2010 geographical constituencies for elections and that the repatriation of refugees is optional.
He said the permanent constitution should be completed later by the newly elected parliament, adding that the current members of parliament were not all elected.
But opposition parties, especially SPLM-IO under Dr. Riek Machar, had voiced reservations about the conduct of elections, saying that the security situation, repatriation of refugees, and returnees, including censuses, among others, must be addressed first before the looming 2024 elections date.