OpEd, Politics

Elections without a New Constitution is a Violation of the 2018 Peace Agreement

By Deng Awur Wenyin


At the advent of 2024, a serious and an unorganized debate ensued. The debate is about whether or not general elections could be held in December 2024.

The looming fears on the horizon are that if the elections are held without a new constitution in place, what will be the repercussions? If, in case they are held under the new constitution, what will be the implications? Ideas being generated by the debate are interesting in the sense that some are constructive, some evasive, some dismissive, yet others, provocative, while more others, amount to hate speech.

For my part, I also count myself a concerned citizen and a concerned scholar as well. Therefore, in this humble contribution of mine, I would like to restrict myself to the jurisprudential notions of interpreting constitutional and legal provisions pertinent to elections.

If you are tackling or talking about the expected elections, then you must submit yourself to be guided mainly by the following: The Revitalized Agreement for the Resolution of Conflict in the Republic of South Sudan (R-ARCSS), 2018, and the Agreement on the Roadmap to a Peaceful and Democratic end of the Transitional Period of the Agreement on the Resolution of the Conflict in the Republic of South Sudan, 2022. The Roadmap is an amendment to the R-ARCSS (See Art.4.5 of the Roadmap) as far as the date of elections is concerned. Albeit the R-ARCSS is incorporated in the Transitional Constitution of South Sudan, 2011 (as amended, see Art. 8.2), yet its terms prevail over the Transitional Constitution of the Republic of South Sudan (TCRSS). The idea of supremacy of R-ARCSS over the TCRSS is certainly borrowed from the experience of the Comprehensive Peace Agreement (CPA), 2005 when the CPA was supreme over the Sudan Interim Constitution (SIC), 2005.

Some of the ideas published in the local press assert that elections should be run when a permanent (new) constitution has been accomplished. For instance, Mr Puok Both Baluang, Acting Press Secretary of the Sudan People’s Liberation Army/Movement in Opposition (SPLA/M-IO) told the press, inter alia, that “We cannot have elections without a permanent constitution…” (See No. 1 Citizen, Jan.10, 2024). Dr Lam Akol Ajawin, a prominent member of South Sudan Opposition Alliance (SSOA), told the press: “… it is not a question of whether we like elections or not. It is a must if we are true to the spirit and letter of the peace agreement.” (See No. 1 Citizen, Feb. 14, 2024). The Chairperson of the Reconstituted Joint Monitoring and Evaluation Commission (R-JMEC), Ambassador Major- General (Rtd) Charles Tai Gituai categorically declared that permanent constitution is a must for elections. (See No. 1 Citizen, Feb. 28, 2024). In a press conference, Hon. Nathaniel Oyet Pierino, SPLA/M-IO Deputy Chairperson and First Deputy Speaker of the National Transitional Legislative Assembly (NTLA) as well, reiterated what the R-JMEC Chairperson had said that permanent constitution is a “must as the agreement says it must come before…” (See No. 1 Citizen, Mar. 02, 2024).

The Roadmap extended the transitional period from 22nd February 2023, to 22nd February 2025. After February 2025, there should be a new government brought into office by the much-being-talked-about elections. Pursuant to the amendment, elections have to be held in December 2024 (this year, see Art. 4.5 of the Roadmap). Under the R- ARCSS, Art 6.4 provides: “The Permanent Constitution… shall be in place to guide the elections toward the end of the Transition”. This is an express provision, viz, it speaks for itself. No any other meaning to be implied because what it is saying is very clear; there isn’t ambiguity. Ifelections are held under any other instrument, that will be a clear violation of the R-ARCSS and the Roadmap. Any violation of the R-ARCSS and the Roadmap can create a constitutional crisis. In other advanced and politically matured countries, the phrase “constitutional crisis” isn’t very dangerous to human life; but here, it is! And, when fighting breaks out, we fight amongst ourselves to the last man, because each tribe has the claim that they hadn’t ran away one time in cowardice from tribe “X” or tribe “Y”. That fallacy can destroy the new nation.

Because it is an aspiration, the parties to the R-ARCSS were, I think, cautious not to have a provision about federalism but introduced it in the preamble: “Cognizant that a federal system of government is a popular demand of the people of the Republic of South Sudan…” This means that issues pertinent to federal system of government, or otherwise, will have to be decided and included in the permanent (new) constitution.

In her contemporary history, South(ern) Sudan had experienced many agreements made and dishonored. Sayed/ Abel Alier, a veteran lawyer and politician, in 1990 published his celebrated book titled: Southern Sudan: Too Many Agreements Dishonoured. Those agreements were respectively made and dishonoured by the British, Egyptians and Arabs (northern Sudan). But now, alas! We can’t make our own agreements among ourselves and dishonour them. Let’s not ridicule ourselves! Let’s conduct the elections under the permanent (new) constitution.


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