South Sudan: Who Has The Constitutional Authority To Postpone Election?

By: Dong Samuel Luak,

South Sudan, Constitution cover image.

South Sudan’s Transitional Constitution, 2011 / Nyamilepedia

Feb 14, 2015 (Nyamilepedia) — Who has the constitutional authority to postpone elections, to which such power could be delegated, and what legal limitations exist to such a postponement. While the Executive Branch has significant delegated authority regarding some aspects of election law, this authority does not currently extend to setting or changing the times of elections.

Everyone was taken by surprise yesterday Friday 13, 2013 when the spoke person of the government Michael Makuei announced through the National television SSTV that South Sudan’s general elections set by the Commission for 30 June 2015 is postponed and the tenure of the Office of the President of the Republic of South Sudan is extended to 2017. The reasons for the postponement of the elections and extension of the term of officer of the President were among others giving Peace a chance. This announcement is the latest of series of the violation of the Constitution by President Salva Kiir since he assumed office on July 9, 2011. Where did the council of ministers an executive branch of government drive its Constitutional mandate to postpone or cancel the election and extend the term of office for the President until 2017 through a memo presented by the Minister of Justice?

This is of course a big joke, what grantees are in place that there will be peace in the near future? The National Electoral Commission I believe is aware that there is war in South Sudan, they are also aware that Peace should be the priority, but President Salva Kiir through his cabinet approved their budget.

The decision came in less than few days for the peace talks to resume in Addis Ababa on February 19, 2015 under the mediation of IGAD. Is this not the same Salva Kiir who rejected all attempts for peace and reconciliation spearheaded by IGAD since January 2014? Is this not Salva Kiir who continued to draw redlines? Is this not Salva Kiir who hired the Ugandan Army to massacre his own citizens? Is this not him who committed war crimes and crimes against humanity? Where was this feeling of urgency to achieve peace for the last 13 months of conflict? Why pushing the electoral commission to announce the elections dates in the first place? Salva Kiir floated the idea of the postponement in several occasions citing insecurity. But nevertheless dates for elections were set.

What will happen if peace isn’t achieve or sign by March 2015, this latest decision by the government of Salva Kiir in Juba is another attempt to entrench and consolidate dictatorship in South Sudan at the expense of Peace and the suffering of its citizens? Will the SPLM in opposition accept the extension of the tenure of the President?

South Sudan Electoral Commission is an independent body as per Section 9 of the Electoral law 2012 that read as follows:

  1. That the commission shall be financially and administratively independence and shall perform its functions with integrity, transparency, impartiality without interference from any authority.
  2. Members and employees of the commission shall perform their functions according to law. They shall be independent and shall not be influenced by Government, state or public officers, political parties, candidates or any other person or body. The powers of the Commission are further stipulated in Section 14 Functions and powers of the Commission J. Postpone any electoral procedure or event for any election or referendum when warranted by the situation in accordance with provisions of this Act and determine new dates for carrying out such events V. Declare dates for elections or referendum polling and issue electoral calendars. It’s a sole responsibility of the Electoral Commission to amend the date of elections, not the council of ministers as per section 15. Amendment of the date, which reads as follows:

(1) Whenever an election is to be held the commission shall announce and publish in the Gazette and the print media a notice of the holding of the election at least six months before the date of the election. This provision was adhered to accordingly by the electoral commission and announced that the election is scheduled for 30 June 2015. As for the proposed amendment of the constitution by the minister of Justice to safeguard the legitimacy of the President in accordance with Article 199 Amendment of this Constitution, it reads as follows:

The Constitution shall not be amended unless the proposed amendment is approved by two-third of all members of each house at the national legislature sitting separately and only after introduction of the draft amendment at least one month prior to the deliberation. As a known fact the Office of President Salva Kiir will be vacant in accordance with Article 102 Vacancy of the Office of the President.

Expiration of the term: Article 100 Tenure of the Office of the President

(1) The tenure of the office of the President of the Republic of South Sudan shall be five years.
(2) Notwithstanding Article (1) above, during the transitional period the tenure of the office of the President of the Republic of South Sudan shall be four years from July 9, 2011. Coming to an end as per the Article 97 the President, unless a general election is held.

(1) There shall be a President for the Republic of South Sudan who shall be directly elected by the people of South Sudan in general elections according to this Constitution and the provisions set forth by the National Elections Commission in accordance with electoral law.

For the proposal of the minister of Justice to be Constitutional he must apply the provision of Article 68 Session of the National Legislature, since our legislature is on recess.

(3) The National legislature or each House may convene an emergency or extraordinary session on the request of half of its members or upon a call from the President.

The speaker of the Parliament upon the request of the President has called an extraordinary meeting of the parliament on February 19, 2015 for the proposed amendments of the Constitution by the minister of Justice. But how come the postponement and extension of tenure of office take place before the approval of the two houses? Well that is South Sudan. The Supreme Court must intervene through the petition of the opposition political parties and protect the Constitution.

The author is Dong Samuel Luak, he can be reached at: dong.luak@yahoo.com

 

 

6 comments

  • The people have all authority to do what they want. My friend Mr. Dong Samuel Luak is asking who has authority to make postponement on South Sudan general election. According to this quote, the government is governing by the people and for the people and of the people. President Salva Kiir Mayardit has clear that, the election must be held on time meanwhile, the main opposition leader Dr. Lam Akol and many others political parties were strongly disagrees saying, the time is too short to held general election. Also the former vice president Dr. Riek Teny was rejecting any so call general election and the out side leaders were widely opposite. The Idea of putting blame on current president is not going to work for sure this is become a confusion.Your question if the peace failed, short the current president will continues engaging campaigning with the rebels for another years put in mine if this peace agreement failed then, there will be no any short peace talk because African leaders are getting tired about conflict in South Sudan

    • Mawien Magol;

      It seems you are very new to the politics of Sudans or you have woke up after a long coma and start to argue on subjects that you don’t have background on. I see that argueing with you will just be a waste of time. You are clueless!

      Just because you may have just graduated from college does not qualify to understand the politics of South Sudan. I don’t know how old you maybe, but I think you are very nieve and innocent, I thought you grew up in South Sudan politics.

      The root cause of our current problem is because some of your uncles got to the root of our government machine and are messing with the functioning of our national system.

      They have taken old of the national resources and tools and are faul-playing with innocent civilians lives.

      Please go back and read about the backgound of South Sudan History and come back and argue from a good smart position.

      Otherwise you are making a fool of yourself just like your uncles in the government who have forgotten that we live in 21st Century with Internet tools that make it hard to fool anybody, all the time. We live in the information era, and you can not be a dictator if you don’t have the brains!

  • molana Dong, you know pple of salva kiir are like lost sheep in desrt no right way to follow becoz they have no guardians. the gove,t becom in great mess.this is the life of person who is going to the last hours,he cannot know what to say, then the relative can begin to notice that,this guy wil not survive.

  • If the constitution means anything to Juba it should have been amended to clause in there cancellation of election and extension of presidential term in office for however long the country need. The supreme court, political parties, and the parliament could have a central role in approving this process rather for one man or a few self serving individuals to make such a decision. There is nothing working for Kiir no matter which way he try stirring the sinking ship.

    • Good Observation Gatnor!

      Nothing is going to help rescue this sinking-ship, no matter what – the biggest engineer (God through Ngundeng), has long time ago punched a well-positioned big hole under this killer ship. And it will surely sink, it is just a matter of time now – within the next 5-months, it will hit bottom!

      The self-serving grass-root blood-sucker SPLM-Juba politicians are going to stampede their flight out of Juba very soon – just watch the count-down!

  • Eastern

    The constitution may be amended to postpone the June 2015 poles BUT NOT TO EXTEND Kiir’s tenure at J1.

    If the Kiir’s tenure is extended by the current rubber stamp parliament full of sycophants, that will be catalysing the current war. Those sick and tired of Kiir will join the war to see his ouster and the brunt will be born by innocent South Sudanese. Kiir must be granted more time in presidency by crooked ways, the war is already taking its toll by the day.

    If military general from BAhr el Ghazal play tricks by staging a bogus coup to keep the country leadership in their backyard, that will hasten the attemp at each region attempting to curve out enclave for their survival.

    Watch this space as the days of Dinkocracy are numbered!