By: Dr. Lam Akol
February 23, 2015 (SSNA) -- Last Thursday, the government tabled before parliament an amendment bill in order to amend the Constitution for the Government to extend its life for two more years. In a democratic setup, is a government allowed to extend its own term of office?
Before answering this question, let us consider our system and compare it to similar systems and experiences over the world.
Our system is a constitutional presidential democracy. In a Presidential Democracy, the president serves for a specific term and cannot exceed that amount of time. Elections to have fixed date not subject to change. This is in contrast to a parliamentary system in which the Prime Minister may call for elections any time he sees fit but, even here, there is always a set number of years he cannot exceed without calling for a general election. All these measures are necessary to ensure a basic requirement of democracy; and that is guaranteeing smooth transfer of power. The essence is that the political party that wins a majority does not lengthen its term of office using the same majority to deny the rest their opportunity to be voted to power by the people. Such a move can be termed “Democracy Once” dictatorship; which is no democracy at all. If a need arises to change the terms of office, the matter must be referred to the people in one way or the other. These guarantees may be included in the constitution as explicit provisions or be understood as a given without which democracy is compromised.
We are governed through the Transitional Constitution of the Republic of South Sudan 2011. This constitution provides for a presidential system in which the president was to serve for four years up to 8 July 2015. This is the same period set for the election of a new Parliament. By tabling an amendment to extend the terms of office of the President of the Republic and the National Legislature without returning to the people the government is breaching a fundamental principle of presidential democracy. If we accept its claim that it was elected by the people in 2010 up to 2015, by whose mandate does it want to rule up to 2017? Does the political party that enjoys the majority in parliament have the right to amend the constitution at will to continue in power for a period more than what the electorate gave them? If this is allowed once, what prevents it becoming a precedent to be repeated time and again? Where will such a precedent leave the democratic requirement of the “transfer of power” between political parties through the mandate of the people?
True, our constitution has a provision that allows for amendments to be made to the constitution (Article 199). But does this provision apply to all articles in the constitution without affecting the nature of the state as provided for under Articles 1(4-5) and 2 of the same constitution? For example, is parliament allowed to amend the Bill of Rights (Articles 9-34)? It is the contention of this author that it cannot. By the same token it cannot amend the articles on the cyclical “transfer of power” (Articles 66 and 100) without seeking the consensus of the people from whose will the Constitution is derived (Article 3). These articles cannot be amended because they form the core of the constitutional presidential democracy we have adopted. This is the crux of the matter.
This matter becomes more critical if we look at the Parliament entrusted to amend the constitution on behalf of the people. The current National Legislature is composed of 332 members; 282 members of the National Legislative Assembly and 50 members of the Council of States. Only 170 members of the National Legislative Assembly were elected to the Legislative Assembly of South Sudan in 2010. The entire membership of the Council of States was appointed by the President in 2011, who also appointed the other 112 members of the National Legislative Assembly. Hence, the total number of appointed members in the National Legislature is 162 members. That is, 49%, which is about half the total membership< of the National Legislature is appointed. This is the body expected to make such a serious amendment!
The government was cognizant of this fact when it insisted on holding elections to renew its legitimacy. It was fully aware that it alone cannot amend the Constitution to attain that objective. If it did, that would be a breach of the Constitution on matters that are taken as given by practice and precedents. When President Museveni did amend the Ugandan Constitution to run for a third term, the move was resisted. This was the same reaction in a number of other countries which underwent similar experiences, the most recent of which was what took place in Burkina Faso last October. Beginning on 28 October 2014, the people of Burkina Faso went on the streets in Ouagadougou to protest against moves by President Blaise Compaore to amend the constitution so as to extend his rule by allowing him to stand for re-election in 2015. Indeed, the protesters did on 30 October force the MPs to suspend the vote on changing the constitution, leading to the overthrow of the President. All this goes to underline the point that there are articles in the Constitution that cannot be changed without changing the rules of the game. And the only accepted game changer is the people.
We all know that the main reason why the 2015 elections were not possible is the destructive war that broke out on the 15th of December 2013 and is still raging in the country. Insecurity is also prevalent in some parts of the country that is not related to the civil war, notably in the Lakes state. The insecurity militates against conducting a free and fair election. It was therefore, obvious that attaining peace must be the priority so that the situation returns to normalcy, after which the people will be able to exercise their democratic rights including taking part in the elections. However, both the government and the rebels could not make progress in the peace talks and, in fact, the Cessation of Hostilities agreement they signed in January 2014 was not respected and the fighting continues unabated. Despite this obvious reality, the government closed its mind and insisted on holding partial elections for the sole reason to gain legitimacy. After spending money on a futile exercise it finally realized that it cannot proceed with the elections but did not give up its determination to cling to power by all means. Hence, came the idea of unilaterally amending the constitution.
The consensus of the South Sudanese to amend the terms of elected institutions stipulated in the Constitution may come about in either of two ways. First, if the stakeholders in the peace talks reach a peace agreement, then this agreement will be incorporated into the Constitution by carrying out an amendment that includes the term of office of the transitional government. Second, if the peace talks are not conclusive, then all the political forces in the country shall hold an inclusive national conference that will deliberate on how to bring about peace to the country. The resolutions of the conference shall constitute the programme of the new government of national unity. It is this programme that will determine the length of time it takes to get it implemented by the new government, and in turn, determine the amendments to be made to the constitution on the strength of this consensus.
The amendments tabled by the government on Thursday were unilateral lacking the consensus of the people as shown above. The government should have waited for the outcome of the current round of peace talks (which started on the 19th instant), which, according to the government and the rebels in their first of February agreement, will see the conclusion of a peace agreement. If they conclude a peace agreement, then the first scenario becomes applicable. If they fail to reach a peace agreement then the second scenario becomes the course of action by default. Making a unilateral move to amend the constitution is a breach of the constitution as explained earlier since the proposed amendments are not backed by the consensus of the people of South Sudan.
Dr. Lam Akol Ajawin is a former Sudanese foreign minister from 2007 to 2010. He is the Chairman of the Sudan People’s Liberation Movememnt for Democratic Change (SPLM-DC).