A CRITICAL ANALYSIS OF ELECTORAL RIGHTS IN

BY AYAYEJACOBAYAYE LLB/43394/143illF

.. A DISSERTATION SUBMITTED TO THE SCHOOL OF LAW IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE AWARD OF THE BACHELORS OF LAWS DEGREE OF KAMPALA INTERNATIONAL UNIVERSITY

MARCH,2019

1 DECLARATION I A YAYE JACOB A YAYE declare that the work in· this Research report is my original work and has never been submitted by any other student of the University or to any other institution of learning.

Signature___ .,_.{#_,""1 __· ______Date 1sf- t§?.

AYAYE JACOB AYAYE

LLB/43394/143/DF

(Student) APPROVAL I hereby certify that this work has been done under my supervision has been and is submitted with my approval for examination, for the award of Bachelorsof Laws Degreeof Kampala International University.

BARAKASAMUEL

(Research Supervisor)

ii DEDICATION

I dedicate this work to mysupportive fatherMr.Ayay Deng Ako! and my sweet loving mum Mrs.AnyuotKoc.

iii ACKNO\VLEDGEMENTS

I wish to extend my gratitude to the Almighty GOD for the gift of life and enabling me to complete my researcher repo1t successfully.

I wish to extend my deep heartfelt gratefulness to Counsel BarakaSamuel,my supervisor for his time, enthusiastic guidance and endless support he has always given to me during this research report writing.

I wish to extend my sincere gratitude to my entire family especially my Parents;Ayay Deng Ako! and Anguatkoc, Anger Abiem and Ahokdit Uncle; Achier Deng Ako!, My Brothers; Ako!Ayay, Deng Ayay, Konf\yay, and Achier Ayayfor their love, care and support they have rendered to me throughout my entire life.

Special thanks and appreciation goes to my lecturers at the School of Law

Lastly, thanks go to my and the friends and course mates at the School of Law for their tremendous support and encouragement at Kampala International University.

May God Bless you all

iv TABLE OF CONTENTS DECLARATION ...... i APPROVAL ...... ,...... ii DEDICATION ...... iii ACKNOWLEDGEMENTS ...... , ...... iv CHAPTER ONE ...... 1 GENERAL INTRODUCTION AND THE BACKGROUND TO THE STUDY ...... 1 1.0 Background to the Study ...... I 1.2 Statement Of The Research Problem ...... 4 1.3 Hypothesis ...... 5 1.4 Methodology ...... 5 1.4.1 Research Design ...... 5 1.4.2 Types And Sources Of Data ...... 5 1.4.2.1 Prim.ary Data, ...... 5 1.4.2.2 Secondary Data ...... 6 1.4.3 Methods Of Data Collection ...... :...... 6 I .4.4 Sample Size And Sample Teclmique ...... 7 1.6. Objectives of the Study ...... 7 1.6.1 General Objective ...... 7 1.6.2 Specific Objectives ...... 8 1.4 Signifieanoe of the Study ...... 8 1.5 Literature Review ...... 8 1.6 Scope of the Study ...... , ...... IO 1. 7 Conclusion ...... 1O 1.8. Limitations to.the study ...... IO 1.9 Contribution of the study ...... 10 1.10. Areas for further study ...... :...... 11 CHAPTER TWO ...... 13 CONCEPTUAL FRAMEWORK ...... 13 2.1. Introduction ...... 13 2.2. Conceptual Framework ...... 13 2.3. Concept ...... 16 2.4. Concept of Postponement of ...... 20

V CIIAPTER THREE...... 24 LEGAL FRAMEWORK ...... 24 3.0 Introduction ...... :...... : ...... 24 3.1. Laws Relating to Elections in South Sudan ...... 24 CHAPTER FOUR ...... 41 FINDINGS OF THE.. STUDY ...... 41 4.0 Introduction ...... 41 4.1. Rights of Citizens During and After Elections ...... 41 4.2 Duties and Mandate of the electoral commission under the constitution ...... 49 CHAPTER FIVE ...... 54 CONCLUSION AND RECOMMENDATIONS...... 54 5.1. Introduction ...... 54 5.2. Conclusions ...... 54 5.3 Recommendations ...... 55 5.4. Conclusion ...... 56 6.0 Bibliography ...... 57

vi LIST OF ABREVIATIONS

AU ...... African Union

CPA ...... Comprehensive Peace Agreement

DRC ...... _ ...... Democratic Republic of Congo

GNU ...... Government of National Unity

GNU ...... Government of National Unity

GoSS ...... : ...... : . ."...... Government of Southern Sudan

INEC ...... Independent National Electoral Commission

IEBC ...... Independent Electoral and Boundaries Commission

MHC ...... Military High Commqnd

NCP ...... National Congress Party

NEA ...... National Elections Act

NEC ...... National Elections commission

NASA ...... , ...... National Super Alliance

OAU ...... Organization of African Unity SPLM ...... Sudan People's Liberation Movement

SPLM/A ...... Sudan People's Liberation Movement/Army

U.N ...... United Nations

vii ABSTRACT .. • Throughout this research topic you will discover that it's based on person's intellect and interpretation of the Articles of the constitution. Under Article 196 of the transitional constitution of South Sudan grant right to vote for representative government and so does the National Election Act No 39 laws of South Sudan reiterates the same prayers. What is often abused by the politician is not the right but the time frame for holding elections and votes tallying or counting • process as such in South Sudan. This is witnessed in 2015 and 2018 postponement of the election. One would argue that elections were successfully held in 2010 that brought president Kiir into power but, it doesn't hold water consent to such assertion because that election was one sided, no one wanted to be united with or associated with northern government. So it was rigged election in way that Itwould appear that there was election. South Sudan have left a lot to be desired when it comes to elections. For example, ri_¥ht to expression is abused, right to lawful associations and assemblies also impeded, multiparty system is strangled, liberty is not free at all and last but not least electoral commission is no independent as it is presupposed.

viii CHAPTER ONE

GENERAL INTRODUCTION AND THE BACKGROUND TO THE STUDY

1.0 Backgrom:id tothe Study

Since 1983 South Sudan has been engaged in political insurgencies with their counterpart the northern government, the war of liberation of the south under the leadership of Dr. John Garang de Mabior. As such the citizens of South Sudan had never had a chance to vote for their representatives not until 2010 and the famous that led to the separation of the two countries hence creating independent south in 2011. Since then South Sudan legislative assembly has been postponing elections say for example 2015 and 2018 respectively. The said elections include; presidential election, election of governors, members of parliament of national assembly and the members of parliament of state council. One could draw the reasons igniting to suspension of election to the History of the strnggle between south and the northern government that lead to insecurity in South Sudan.

This could have been due to the obvious fact that South Sudan is a new country and that the south Sudaµese do -not know the importance of the election as they were used to the junta means of accomplishing their aims and objective as reflected in number of protocols of Sudan peoples' liberation Army enacted and authenticated to by the chairman Garang. That is why the study is based on what is election? How significant is election and what are the electoral rights, the standard of the elections; national standards, regional standard and the international standard.

The such is both passive and the active. The former being the voter and the latter is candidate. The transitional constitution laws of South Sudan under article 196 provides for election of representative government of the people of South Sudan. Not until 1950s and 1960s

1 there were no elections in sub-Sahara Africa, elections were only witnessed after decolonization

of some countries such as 05 Sahel states. The history of election is traced back to 17tl1 century

during selection of Roman Emperors and the Popes representative governments in Russia after

the fall of Tsars'.

The principle governing election is "one person, one vote." This principle however, has met so

many blockades in Africa generally due to gen-ymandering of vote resulting into frustration of

electorates forcing them to disown the polling outcome as the case may be. Some general

elections are just postponed to the advantage of the rilling party such as the 2015 and 2018 in

South Sudan were to execute the interest of SPLM party lead by .H.E Silva Kiir. What is not clear

is how must postponement of presidential elections lead to postponement of the election of the

governors and the state legislators? such election should have been carried on while pending

determination of the presidency, who knows that could as well shape the look of things as the

case may be. the National Election Act, 2012. Act No. 39. Provides for who is eligible to vote? It

stipulates that; one electorate must be, South Sudanese, 18 years of age, registered in the

electoral registry and must be of sound mind.

It's good to know that election is where people choose their representatives. Aliicle 21(3) of the

Universal declaration of Human Right draws inter alia the right to paiiicipate in election

individually by casting a vote or be voted for all the same. In subsequence discussions the

researcher will be looking at the, the rights to vote, the obligations of the, electoral commission,

some of whi(;h ai·e granted by the statutes, such as cancelling of the election process if the

Chairman of the electoral commission deemed it fit that the elections were not credible, free and fair and, declai·ing the winner of the so contested elections.

2 The researcher will also venture through electoral process and challenges with

recommendations. There are .so many methods that are used in the election for instant. Paper

based method where voters use papers to elect their representative, postal methods is where votesare send tlu·ough postal office, online is people on internet and last but not least is machine method 'which is now used in Congo's election of 2019. The right to vote is not absolute as it can be withdrawn by the state from the voter where the voter in question is criminal or befriends the enemy of the state and where the voters name isn't in the register of names as such.

In most country the right to vote is a duty and not a discretionary right per se for example in

Uganda and Rwanda. This is not the case with South Sudan where people would like to think of it as of right qnd they can choose to exercise it or not, thus living parliament to play around with the fate of the election and the right to vote.

South Sudan has_ cjomesticated a number of conventions of human right namely; 1993 Vienna

World Conference on Human Rights, African Union convention on Human right and Universal

Declaration on Human Right. This are often referred to as bill of rights and, they are provided for in chapter two of the transitional constitution 2011 of republic of South Sudan. Most people know that Hl!111fil1 rights m·e inherent in nature and caJ1Uot be granted by the state but as to why south Sudanese authority take to the contrary is yet to be understood. In "African opposition do not win elections if they do, it's when the president is retiring". This gives a leeway to post election violence and interruption of the election process. The question of the system of governance and ·theory also matter a lot, African leaders have been termed as dictators and military based organization.

South Sudanese love to think of ourselves as democrat, but they must conceptualize the principle and place it within the context of the election! Dr. El Zadawi on Aljazeera said "elections have

3 nothing to do with democracy neither does democracy have anything to do with election" siding the American election of Barrack Obama and Donald Jolm Trump, claiming election malpractices and inegularities. In South Sudan during rebellion against northern government there are claims that elections amongst the Military High Command(MHC) of SPLM under

Garang were not held, handing fertile ground to 1991 Nasir declaration that created two factions' latter on one that's lead by Dr Riek and Dr Lam. And the Torit faction led by Dr John Garang.

This sought of behavior has been reiterated in 2013 and 2016 all because of denial of elections both primaries and general elections prompting another war yet to be conceded.

1.2 Statement ofthe Research Problem

Considering the and the fact that South Sudanese have been in the war for more than 21 years with no or little knowledge about the election, researcher finds it benefiting to discuss the electoral process, the standard, rights to the electorate, challenges and recommen<)ations to the electoral commission. Since 1991 during the struggle the SPLM military high command used not to conduct election and 2015 elections were postponed to 2018 and still in 2018 general elections were suspended. This habitual act of suspending election is what will be to addressed by highlighting the truth that elections are constitutional rights and that it shouldn't be abrogated by the parliament without clearly defined problem and the solution, election must be distant away_ from conflicting interest of the ruling party such as SPLM. In 2012

National Assembly enacted National Election laws for the regulation of election. The researcher will also be looking at the rationale as to why elections in case of war must be postpone when there is war not after the war and, not on anticipation that war is likely to happen.

4 1.3 Hypothesis

There are laws governing elections in South Sudan but since the independence in 2011 South

Sudan have never held elections. Elections were in 2015 and 2018 respectively. Its appears there

are two problems first, lack of enforceability of the law by the authority concerned and second,

insecurity coupled with denial of right to vote the representatives, hence self-imposing government on the people of South Sudan.

1.4 Methodology

1.4.1 Rcac~rcb l)csign

The information in this research is based on Books, Articles and Journals. Researcher also took a liberty to interact with officers worldng in electoral commission in South Sudan by use of sampling techniques and they cooperated. The researcher has also written questionnaires to the general public like schools and universities in order to enable researcher to obtain public opinion on matters relating to election and the electoral commission. The researcher also observed the

2010 elections in South Sudan as well as the Referendum that separated the south from north.

And such other philosophical opinion was also added. After all there methods of data collection, the researcher subjected the response to critical analysis and compile the research thereto.

1.4.2 Types andSources oIData

Both primary and secondary data were used during the study.

1.4.2.1 Primary Data

Primary data refers to the factual, firsthand account of study, written by the person who conducted, or was part of the study. Primary data may also refer to the statement of the law itself

5 from a governmental entity such as a comt, legislature, executive agency, president or governor.

Primary data in this study was through personal face to face interview with respondents from electoral commission... Other primary data was obtained from statutes. This included constitution and principle legislation as well as subsidiary legislations.

1.4.2.2 Secondary Data

Secondary data is refeITed to an analysis and the interpretation of the primary research. It also refers to material that discusses, explain, interpret and analyze what the laws is or what it should be, including treaties, law reviews, encyclopedia, Articles and research papers. Secondary data also provided extensive citations to primary legal material and other relevant som-ces.

Secondary .data was obtained from textbooks, reports, aiticles ai1d internet. The documentary research method was employed to access and collect the said documents and others records which were thought to be relevant for the purpose of understanding the subject matter of the study, as well as assist the analytical process.

1.4.3 Methods ofData Collection

Two cross sectional sm-vey methods were used in collection of primary data. These ai-e interviews and library research.

(i) Intcrvicws.Thesewere conducted to reduce general information, opinion and

conunentaries on electoral rights in South Sudan. The interview was unstructured. This

is because the questions to be answered depended on the political prevailing situation

that might prevent the free flow of the information.

6 (ii) Library Research. This involved reading and analyzing information found in both

primary and secondary sources such as the, constitution, statutes, international treaties,

books, articles and other research papers and thus the Library was used in collecting

both secondary and primary data.

1.4.4 Sample Size andSample Technique

The researcher interviewed a total of IO respondents. These were chosen from difference electoral bodies in South Sudan.Respondent was obtained through purposive and snowball sampling technique, where by the researcher purposely chose the respondent thought to be having necessary information. These then referred the researcher to others whom they believedcould also be having the required info1mation. ·

0 1.5. Resca1'ch Questions

Below are the research questions i). What are the various types of electoral laws in South Sudan? ii). What are the electoral rights accorded to the citizens during and after the elections? iii). Why and when do countries postpone ? iv). What are the possible challenges facing electoral commission and the electorate? v). What sho1.1ld be done in order in order to improve the situation?

1.6. Objectives of the Study

1.6.lGeneral Objective

To analyze the Electoral Laws of South Sudan.

7 1.6.2 Specific Objectives

i). To identify and analyze the various electoral rights in South Sudan

ii). To identity the challenges face by Electoral commission in South Sudan

iii). To provide possible recommendations on electoral rights in South Sudan

1.4 Significance of the Study i). The research aimed at addressing issues of the election and as such could provide a

fran1ework for ~11 including; parliament, general public and the electoral commission as well. ii). The research laid down solutions to the problems faced by electoral commission; it will be

the source of civic education on matters relating to election as a whole. iii). The findings of the study will also be used for future reference.

1.5 Literature Review

There are many social and political authors that discussed elections and the outcome of the election in various countries. Therefore, the researcher extracted the few that their work is appreciative to the topic. This are;

Larry Diamond and Leonardo. 1on what constitutes the "good' 'or a' 'quality" democracy focusing on of 2016 in South Africa. To Lany election are good if the locals exercise freely their right to vote for their representative without coercion and genymandering of votes. In South Sudan we are yet to witness independent choice of the electorate.

\vww.wrilingcenter.unc.edu.

8 Lynnette Fourier. 2discussed in her Article the formation of the political parties and adhering to promotion .of debates to assist voters to make informed decision during election. Lynnette also argue that negative messaging by the political as resulted into challenges t?day in Africa.

Marie Grussel. 3in analyzing public perception of televised political advertising as a new element of campaign. For example, the European parlian1entary election 2009 and Sweden election campaign of 2006 was televised which prompt her to conclude that its led to miscarriage ofjustice since electorate might not follow up the election counting as such.

Hanalei Otto 4 in his book discussed tilat, one of the central element in a sustainable democracy is an infon;1ed aµd corps who is knowledgeable regarding democratic values and the policies of the different parties and who paiiicipates in democracy. I think Otto is much more concern(!d about the electorate exercising independently the righto vote.

Cecil Emmanuel. 5wrote about the unrest of the local before and after the election and the political-economy in the country of south Africa.

Gavin Davis. 6 He focuses in· the outcome of the election in south Africa and he thinks that the racial appealing candidate are likely to win then those that do not. These perspectives are how elections are won. in. Africa and not in South African only. South Sudan inclusive .

Edward Thomas. In his book entitled "slow development in South Sudan. This book takes a long historical view of patterns of uneven development within ti1e Sudan where by ti1e ruling paity won the elections by 97% in general elections and 92% in tile parliamentary elections. This to the

2wpsa.research.pdx.edu. 3cn.m.wikipedia.org 4www.rlf.org.uk 5https://sites.hks.havard.edu. 6www .researchgate.net

9 author emanmed from the fact southerners didn't want to associate with the northern govenm1ent as one of the opposition was unity minded candidate. 7

1.6 Scope of the Study

The scope of the" study is based on the electoral rights ·in South Sudan, and how those rights are protected by the international statutes such Universal Declaration of Human Rights, African's charter on people and human's rights, the laws governing elections in south Sudan as seen in the legal framework is a transitional constitution of south Sudan (2011). National elections act No.

39 (2012). The research shall have the findings on electoral rights, the duties of electoral commission, postponement of elections and the legal frmnework.

1. 7 Limitations to the study

The researcher faced resource constraints during the process of data collection in terms of financial and time restrictions, but these were managed by prior planning and budgeting for the available resources in order not to compromise the purpose of the study.

There was lack of cooperation from the respondents who feared to freely express themselves to the researcher but this was offset by early testing of the questionnaire in order to acquaint the respondents with its contents .and what was required o.f them in the actual study. The researcher also assured them of utmost confidentiality and academic nature of the endeavored.

1.8 Contribution cif the Study

This study contributed knowledge especially in the application of Social Choice theory in electoral processes in an emerging democracy in a country like South Sudan. The electoral

'Edward Thomas (2017). South Sudan: A Slow Liberation

10 management body (EMB) of South Sudan can use the findings and recommendations of this

study to improve its electoral processes.

Researchers and other stakeholders interested in the elections field and democracy can use the

study to fu1iher their understanding on electoral processes. The academicians can use this study for further research studies in the electoral processes.

The study was an eye-opener to the voters who seem not to be sure of electoral process; it may also change their attitude on mass sensitization effort, legal framework in place and stakeholders' role in electoral supervision.

Policy-makers can use this study to propose and improve government policies on elections and pass good and timely electoral laws.

1.9. Areas for further study

More research needs to be done on continuous appraisal of elected leaders to ensure that they keep promises they made which got them elected in the first place. A democratic mechanism which keeps t)1em in check needs to be devised.

There is need to study how democratic elections promote dictatorships in African countries. This is because the researcher has noted a trend among African governments to legitimize dictatorial or undemocratic regimes by abusing the electoral processes.

The current study took a cross-sectional approach. However, a longitudinal study may need to be done in order to provide a broader insight into trends in electoral processes and democratic over a longer period of time, say 10 years.

11 1.10 Conclnsion

The research entails various types of electoral laws both domestically arid internationally. The electoral rights and the literature review or the opinions of the renowned authors. The research also contains the Histo1y of South Sudan from 1983 to 2018 and last but not least critical analysis on laws and the recommendations possible.

12 CHAPTER TWO

CONCEPTUAL FRAMEWORK

2.1. Introduction

This chapter presents the relevant literature that was referenced to for the study. It contains the theoretical review, the conceptual review, a review of literature objective by objective, and a summary of all literature reviewed as well as gaps identified and lessons learnt.

2.2. Conceptual Framework

8 South Sudan, the youngest country in Africa, is listed in the African center for strategic studies , amongst the twenty countries with the most challenging elections that Africa is going to witness in 2021. The reason why holding its elections comes across as a challenge are multifarious but can largely be attributed to one factor, that is the country is at war. South Sudan has been war torn for 5 out of 7 years of its existence, not to forget the three decade long Sudan Civil War its people fought prior to that.

Known as one of Africa's greatest tragedies, South Sudan today is in dire humanitarian crisis. It is bereft of peace, prosperity, economic stability, political legitimacy, legal administration, freedom of. thought and expression and of course, human rights. Since 2013, 4.5 million people have been driven from their homes- the same number of Southern Sudanese displaced during the entire Sudan civil war. The number of refugees fleeing from South Sudan to Uganda alone crossed the one million mark in 2017. This manmade crisis is escalating in tandem with increases

8DorinaBekoe(February I 6, 2018). Africa's Most Challenging Elections in 20 I 8

13 in violence. Amidst all of this, South Sudan's President Salva Kiir has started lobbying for elections to be held on the 9thof July 2018 despite such unfavourable conditions.

President Kiir is said to fear the loss of his legitimacy and the creation of what he calls "a political vacuum'.' ~fter the term of the transitional government, signed by him and rebel leader

Riek Machar, expired in February 2018. As per the August 2015 Comprehensive Peace

Agreement, which laid the foundation of the Transitional Government of National Unity, elections were to be held within 30 months to maintain validity. In spite of momentary respite after the peace agreement, South Sudan sprang back to conflict due to ceaseless rebel infighting and has never resorted to democratic means for a solution.

Mediations from the International Community have not resulted in a tangible breakthrough.

Reasons for this included disagreement on power sharing among the diverse groups and a lack of positive engagement from the two rebel leaders. The latest development being that, after nearly two years since their last meeting, rival leaders President Salva Kiir and met face to face on 20 June in Addis Ababa to stmt a new round of talks to end South Sudan's prolonged civil war. They later agreed to a permanent ceasefire to take effect within 72-hours on 27 June in

Khartoum but the ceasefire agreement was violated within hours after it was signed. President

Kiir also presented plans to extend his te1m for another three years in pm·liament on Monday 2

July, a move that was rejected by the opposition but will be voted on in parliament later in July.

As successful peace talks seem unlikely to occur, some are calling on the international community to take a tougher stance to stop the conflict. Fo1mer United Nations Secretary­

General, Ban Ki-moon, called for harsher sanctions before the end of his term, which included an m111s embargo and targeted financial restraints to individuals in the government and rebel groups.

14 The new Secretary General, Antonio Guterres, has taken a softer approach by leaning on the

African Union and the IGAD to negotiate the peace. However, individual countries have followed the call for a tougher stance by passing their own sanctions.

Elections in South Sudan refer to the electoral process and the elections in South Sudan. South

Sudan had the most recent sub-national election in 2010 for the presidency of the regional governmen~ of Southern Sudan9 and for the bicameral, 170-member Legislative Assembly. In

2010, the South Sudanese independence referendum, 2011 was held resulting in a strong majority in favour of independence. This was despite difficulties and inegularities. 10

United Nations experts warn that the forth coming elections in South Sudan would be catastrophic and lead to more violence in the conflict-torn country. A report on the humanitarian consequences of civil war ·has been submitted to the U.N. Human Rights Council.The

Commission on Human Rights in South Sudan describes the humanitarian situation of millions of South Sudanese refugees and internally displaced people as almost unmanageable. The experts, who visited Ethiopia and South Sudan between September 4 and 15, report shocking scenes of desperate refugees fighting to be registered. The experts said they saw people waiting in line collapse from hunger. FILE - The United Nations' protected camp in Wau, South Sudan, now the most congested internally displaced camp in the country, May 14, 2017. In South

Sudan's capital, Juba, they interviewed women who had been raped by soldiers and were unable to receive justice or recompense for their suffering. The commission says officials, including

P~esident Salva Kiir, told them they wanted to hold elections once the transitional government comes to an end ..

9FACTBOX: Sudan presidential election results Sudan Tribune, 27 April 2010 "'Pete Muller in Juba, southern Sudan. "South Sudan's polling problems".

15 2.3. Election Concept

An election is a fonnal group decision-making process by which a population chooses an individual to hold public office. Elections have been the usual mechanism by which modern representative democracy has operated since the 17th century. 11 Elections may fill offices in the legislature, sometimes in the executive and judiciary, and for regional and local government.

This process is also used in many other private and business organizations, from clubs to voltmtary associations and corporations. 12 The universal use of elections· as a tool for selecting representatives in modern representative democracies is in contrast with the practice in the democratic archetype, ancient Athens, where the Elections were not used were considered an oligarchic institution and most political offices were filled using s01iition, also known as allotment, by which officeholders were chosen by lot. 13Electoral reform describes the process of introducing fair electoral systems where they are not in place, or improving the fairness or effectivene~s of existing systems. is the study of results and other statistics relating to elections (especially with a view to predicting future results).

According to Elekwa14 the electoral process relates to the entire cycle ranging from the provision of voter education to the dissolution of the National Assembly. There are number of measures that can be taken into consideration when measuring electoral process - electoral mass sensitization and electoral supervision. Mass sensitization is the delivery of sensitization programme or messages to general public by utilizing mass media such as national press, radio,

''Election ()," Encyclopedia Britanica Online. Retrieved 18 August 2009 12Eric W. Robinson {I 997). TI1e First Democracies: Early Popular Government Outside Athens. Franz Steiner Verlag. pp. 22-23. ISBN 978-3-515-06951-9. 13 Eric W. Robinson (1997). The First Democracies: Early Popular Government Outside Athens. Franz Steiner Verlag. pp. 22-23. ISBN 978-3-515-06951-9. 14Elekwa, N.N. (2008): "The Electoral Process in Nigeria: How to Make !NEC Succeed.

16 and television. The term electoral sensitization refers to voter education and awareness, and civic

15 education • According to Transparency International (2012), Voter Education is an enterprise

designed to ensure that voters are ready and willing, and able to participate in electoral politics,

and that the main objective is to increase the quality of governance and thus reduce corruption by

assisting voters to make a more informed choice when voting in the national elections - the civic

awareness geared 'project' aims to reach this goal of maximum Voter 8.

Education · inforination saturation and dissemination through poster distribution, radio & television (TV) broadcasts and regional forums & provincial workshops. Elections are no doubt an important factor in determining the level of a nation's democratic process. The level of development in any count1y depends on the credibility of the leaders and the process that brought them to power. Elections give the masses the opportunity to choose those who will govern them.

Silveman16pointed out that ,elections empower citizens through enhanced participation in decision making and development planning. Participatory democracy has assumed a central theme in the debate on the deepening of democratic practice in governments, particularly in developing countries.

Lindberg17and Hadenius and Teorell18 report that elections and vigorous multi-partyism increased the likelihood of democratization and regime change. Elections provide the avenue for people to express their franchise and elect their choice of leaders and they provide an opportunity for leaders to be replaced when they fail. Huntington pointed out that in circumstance, an

15 IDEA 2006 16Silve1;an, 1992. 17Lindberg, 2006. 18Lindberg (2006) an'd Hadenius and Teorell (2007). Authoritarian regimes: Stability, change, and pathways to dGmocracy, 1972-2003 17 election bec~mes "the death ofDictatorship". 19Free and fair elections, which are the main reason

for democratic elections,.. promote legitimacy and accountability in government. Lawrence and Norris (2002) point out that "elections are the lifeblood of democracy". They further stress that a

democratic election requires many other features, including transparency and accountability in

government, vigorous party competition and regular rotation of the party in government and

opposition, mi+ltiple channels of political communication and extensive opportunities for citizens

"participation. Ake20argues that elections are perversions of democracy because they co1111ote

popular participation but not delegated power. This, according to him, is because direct

democracy has become impossible and problematic in today's complex and complicated post­

modern soc;iety. The power to govern is given to the elected government officials by the people

through a credible election, but in some cases they do not act or govern according to the will of

the people who elected them into office. According to EU Commission (2007), the achievement

of a democratic electoral process is part of establishing a system of government that can ensure

respect for human rights, the rule of law and the development of democratic institutions. This

goes to show that for democrncy to be sustained in any country of the world; political power

must be based on the consent and will of the people.

Tile National Elections commission (NEC)21 of ·south Sudan was established by the

constitutional and legal legitimacy of the elections derived from Comprehensive Peace

Agreement (2005) that secured the right to vote in regular elections, which is based on secret

voting, to guarantee freedom of expression for voters. The National Elections Acts (2008) of

South Sudan describes the NEC as independent, impartial and transparent commission that

"Huntington, 1991. 20Ake, 2000 21 South Sudan elections commission launched, (22 Jan, 2013) ' 18 undertakes the processes of organizing and managing the elections with the utmost degree of

administrative, technical and ·financial independence, without interference from any other body

in its affairs, functions or competences. 22The National Elections Commission of South Sudan

comprises nine commission members, who are appointed by the President of the Republic with the consent of the first Vice-President and unanimous approval of the members of the National

Assembly. The chairperson and Deputy Chairperson of the commission are on fulltime base and are selected from an1ong the commission members by the president of the Republic and the consent of the first vice-President. It is worth noting that some of the key criteria for selection are integrity, independence, non-partisanship beside academic qualifications. The tenure of the office is five years (Borma~, 2013).23 The comm:ission establishes the branch state high committee offices within the states (District) of Southern South Sudan high election committee

(SSHEC) office fn. South Sudan and determines the functions and powers of the two offices at different levels. The electoral process depends on the used in the colll1try. South

Sudan used a mixed electoral system, i.e. The First-past-the-Post (FPTP) and Propo1iional

Representation (PR).These electoral systems differ fundamentally in terms of their essence and features as well as their impact on election outcomes and the political stability needed for democratic governance. 24

Voting in South Sudan is by suffrage: universal, secret, direct and indirect. South Sudanese of at least 18 years of age, who are resident in the constituency for three months before voting and registered as a voter (which can be done at time of voting), are eligible to vote. The elected national institutions in South Sudan include; the president, elected for a five-year term by direct

22Banks, 2005. 23Bonnann, (2013).Democratic Electoral Systems around the world, 1946-2011 24Bormann, 2013.

19 universal suffrage (one consecutive re-election being allowed). Concerning nomination of

candidates, South Sudanese citizens who are of at least 40 years of age, of sound mind and who

have not been convicted of 'an offence involving honour or honesty' in the seven preceding

years qualify to run for the position of president.25For elections to the national assembly, South

Sudanese of at least 21 years of age and who have not been convicted of 'an offence involving

honor or honesty' in the seven preceding years (Att. 68 of the I 998 Constitution) are eligible to

run for election. The South Sudan Government seem to have put in place some enabling laws

(constitution), but a some section of the population seem to be skeptical as seen from the

statement by this researcher: "The electoral commission of South Sudan operates in an

enviromnent where interests and influences from the govermnent might be hindering its

execution of proper electoral processes which in turn might be affecting democratic elections. 26

2.4. Concept o:fPostponement o:fEicctions

On 14th February 201527, South Sudan's Cabinet announced plans to extend President Salva

Kiir's term and postpone national elections that were supposed to be held in June. The move,

which seeks to put off the elections until 2018, must be approved by the country's parlian1ent,

which is expected to review the proposal Tuesday. The proposal also called for the current

parliament's term in office to be extended until 2018. South Sudan's Information Minister

Michael Makuei Lueth told the Associated Press the elections should be postponed in order to

resolve any "legitimacy issues" from a potential future power-sharing agreement between Kiir

25Art. 37 of the 1998 Constitution). 26Golder, M.,Wantcllel

27 Olivia Becker Feb I 4, (2015).South Sudan Moves to Postpone Elections to Resolve Government's 'Legitimacy Issues'

20 and his ri'(al, former Vice President Riek Machar.In 2016, Nigeria failed to decide its next president today as previously planned resulting into postponement of its elections28 owing to difficulties distributing voting materials, the country's electoral commission, lNEC, is postponing the polls by a week. According to repo1is, the elections could not possibly have progressed as scheduled given anticipated sho1iages of voting materials, especially ballot papers, in some states. Nigeria has also. postponed its 2019 presidential. elections. The presidential and parliamentary votes have been rescheduled for February 23rd and the gubernatorial, state assembly and federal area council elections have been rescheduled for March 9th. The

Independertt National Electoral Commission made the aimouncement hours before voting was scheduled to start on February 16. The country's electoral commission had three years in which to prepare for the poll. The postponement can therefore be viewed as a display of utter incompetence and inefficiency. It is the first time since 1999 when Nigeria shunned military rule for democracythat a Nigerian electoral commission has failed so spectacularly. This is not the first time an election has been postponed in Nigeria.· But reasons cited on previous occasions such as the threat posed by Boko Haramhad more substance and felt more legitimate.

This time the electoral commission cited logistics as the reason for the postponement. This was despite the fact that just 24 hours before the poll it said all systems were i'.1 place for the election to go ahead. The postponement therefore raises a number of serious questions. As a result, the decision has left many Nigerians wondering about the effectiveness of the electoral commission.

Since the announcement of the election, various political parties and political analysts have debated its ability to run an efficient poll. This in turn has fueled a sense that the

28 FolaAdeleke, University ofthe Witwatersr andFebrua,y 18, 2019. Nigeria's election delay only builds the lack oftrust in its ability to holdfair elections

21 commission doesn't have the ability to conduct free and fair elections. Members of the main

political paiiies the ruling All Progressives Congress and the main opposition People's

Democratic Party are already trading allegations over what could be interpreted as a plai1 to rig the elections.

For the case of the Democratic Republic of Congo, the presidential election due to take place on

2nd January 2019 was postponed until Mai·ch 2019 where the electoral commission blained

29 insecurity and aJ1 Ebola outbreak •The decision appeared to caJ1cel the votes of more thaJ1 a million people because the new president is due to be sworn in by the middle of JaJ1uary.

However, the election to choose his successor has been continually postponed, amid umest and reported logistical difficulties. Opposition supporters suspect that he intends to cling on to power.The _three areas were Beni and Butembo in eastern North Kivu Province and Yumbi in the west of the country.In Yumbi, at least 80 people were killed earlier this month and thousaJ1ds have fled to neighbouring Congo-Brazzaville amid violence triggered by a dispute over where to bury a traditional chief.Beni has been affected by fill Ebola outbreak that has killed at least 350 people since August. Neai·by Butembo has seen attacks on civi!iai1S attributed to a Ugandan

Islamist militia, the Allied Democratic Forces.However the area is also seen as an opposition stronghold and opposition supporters accused the government of attempting to disenfraJ1chise them.The postponement of elections in the Democratic Republic of Congo (DRC) was worrying aJ1d potentially dangerous for the Congolese people and for aid agencies working to address massive humaJ1itarian need in the country, including the second largest Ebola outbreak in histo1y. While the International Rescue Committee acknowledges the impo1iaJ1ce of being properly prepared to hold a free, fair aJ1d traJ1sparent election, postponement beyond one week,

29 BBC News, DR Congo presidential election postponed in three areas, 26 December 2018

22 and thus extension of President Joseph Kabila's term, would be exceptionally damaging to the country's rule of Jaw. Further delays could inflame political tensions and further worsen the ongoing humanitarian crisis and undennine the humanitarian response. 30

30Jnternational Rescue Committee, report 2019. 23 CHAPTER THREE

LEGAL FRAMEWORK

3.0 Introduction

According to International Electoral Standard guidelines for reviewing the legal framework of

Elections (2002), the term "legal framework for elections" generally refers to all legislation and pe1iinent legal and quasi-legal material or documents related to the elections, and that specifically., the "le'gal framework for elections" includes the applicable constitutional provisions, the electoral law as passed by the legislature and all other laws that impact on the elections.In addition, any regulations attached to the electoral law and to other relevant laws promulgated by govenuuent <1nd encompasses relevant directives and/or instrnctions related to the electoral law and regulations issued by the responsible EMB, as well as related codes of conduct, voluntary or otherwise, which may have a direct or indirect impact on the electoral process.

3.1. Laws Relating to Elections in South Sudan

The principal laws 'relating to elections in South include international law and the domestic laws of the Country. The Constitution and the main electoral legislations provide the main regulations and mies for elections in the country. Actually, the national principal laws include the 2011 constitution and the National Elections Act 2012. An international and regional legal framework is equally important to be in place for democratic elections to be realized. The Carter Center

Publication on Election Obligations and Standards (2009), maintains that a sound legal framework is essential for the effective administration of genuine democratic elections; and points out that the legal framework includes rnles found in the domestic laws of the country that regulate how all aspects of the electoral process should unfold. These laws may include: the

24 constitution; election laws; laws regulating the media, political parties, civil society actors, etc.;

and other rules and regulations promulgated by the appropriate authorities such as procedures for

election administration - the laws written clearly arid consistent with one another, and will

provide a framework for elections that protects and advances international ·human rights. 31

The Cater Publication on Election Obligations and standards (2009) spells out that electoral issues that a legal framework on elections should address include: the protection of human rights and fulfillment of obligations as well as any derogation measures; the role of state authorities, including the EMB, in upholding rights; the timing of elections and impact of the electoral calendar on human rights and obligations; the need for the legal framework to be non­ discriminatory; and the right to an effective remedy. The right to an effective remedy should include a provision for challenging election results where necessary; citizenship rules should be clear and non-discriminatory; the legal framework should include guarantees of equality before the law for men and women, and measmes to promote equality of minorities, and persons with disabilities; the framework only allowing for temporary postponement of the elections in times of declared public emergencies, and including a realistic electoral calendar that allows adequate time to successfully implement all aspects of the elections, among others. 32

The establishment of the Comprehensive Peace Agreement (CPA)in January, 2005 brought an end to Sudan's 22-year civil war. The CPA constitutes a deal between the Khartomn-based government of Sudan, represented by the National Congress Party (NCP), and the Sudan

People's Liberation Movement/Army (SPLM/A), a former southern rebel group. In addition to

31The Cater Center, 2009. 32The Cater Center, 2009.

25 several other arrangements, the CPA provided for an interim period of six years during which the country is ruled by a Government of National Unity (GNU) that represents both parties, as well as for a semi- autonomous Government of Southern Sudan (GoSS). Ultimately, the interim arrangement paved the way for a referendum on independence for the South Sudan in 2011. It was decided that ·general elections were to be conducted at the halfway point. 33

The framework of Sudan's 2010 elections was marked by its complexity and it reflects a high level of ambition. The National Elections Act, passed in July 2008, stipulated elections for political offices at six different levels, namely for (i) the presidency of the GNU; (ii) the presidency of the GoSS; (iii). state governorships; (iv} the national legislature, consisting of the

National Assembly and the Cotmcil of States; (v) the Southern Sudan Legislative Assembly; and

(vi) the State Legislative Assemblies. The executive branch of government - the presidencies and state governors is to be elected by using a majoritarian, 'first-past-the-post' system. A mixed system is used for the election of members for the national, the ·southern and the state legislatures: 60 per cent of the members of the National Assembly, the Southern Sudan

Legislative Assembly and the State Legislative Assemblies will be elected through a majoritarian system, while the remaining 40 per cent will be elected on the basis of proportional representation, with 25 per ceht of the seats being reserved for women closed list and 15 per cent paity closed list. The Council of States will be made up of two representatives from each of

Sudan's 25 states, to be selected by each State Legislative Assembly.

Though the legal framework is in place, the crisis in Darfur continues to cast a shadow over other issues dominating present-day Sudanese politics. The protracted nature of the crisis raises serious

33European Union Election Observation Mission report, 2010.

26 doubts with regard to the feasibility of Darfur participating in the electi~n. 34Further to this, a

section of academicians argue that it is generally good to lay down transparently a legislative

framework for electoral processes, but remain skeptical of the practice as noted by Collier

(2009), in his book, 'Wars, Guns and Votes: Democracy in Dangerous Places. 35stressed that:

"competitive elections in themselves do not provide an easy way out for low income countries

that are exp~riencing protracted political violence. He further warns against the simplistic assumption that they offer a 'quick fix' and subsequently attempts to refute the hypothesis that

"where people have recourse to the ballot, they don't resort to the gtm".

Zeeuw (2009), supports this argument and notes that Collier's message is clear and has previously been referred to by others while debating the viability of democratization in impoverished, conflict-ridden countries (such as Sudan). The provision of the Article of

Elections Acts of 2008 on tenns of appointment of the Commission members, where the

Chainnan and the Deputy Chair are appointed to serve on full-time basis while the other seven members are serving on part-time basis, subject the Chairman and the Deputy to incline or lean towards the rnling party's compromised deliberate position in favour of contentious issues that push the ruling party against the wall, leave alone the fact that the commissioners on pait-time basis are deprived of their utmost time and effort to rnn smooth and flexible elections. In addition, the omission of the criterion to determine the limit of expenditure for parties' and candidates' electoral campaigns in the electoral act is a.gap that cannot be ignored ... 36

34BBC News, 2005. 35Collier, 2009 36NEC report, 2010: 53.

27 According to International Electoral Standard guidelines for reviewing the legal framework of

Elections (2002), the term "legal framework for elections" generally refers to all legislation and

peiiinent legal and quasi-legal material or documents related to the elections, and that

specifically, the "legal framework for elections" includes the applicable constitutional provisions,

the electoral law as passed by the legislature and all other laws that impact on the elections; and also any and all regulations attached to the electoral law and to other relevant laws promulgated by government - and encompasses relevant directives ·and/or instructions related to the electoral law and reg~lations issued by the responsible EMB, as well as related codes of conduct, voluntary or otherwise,. . which may have a direct or indirect impact on the electoral process .

An international and regional legal framework is equally important to be in place for democratic elections to be realized. The Carter Center Publication on Election Obligations and Standards

(2009), maintains that a sound legal framework is essential for the effective administration of genuine democratic elections; and points out that the legal framework includes rules found in the domestic laws of the country that regulate how all aspects of the electoral process should unfold.

These laws may include: the constitution; election laws; laws regulating the media, political parties, civjl society actors, etc.; and other rules and regulations promulgated by the appropriate authorities such as procedures for election administration - the laws written clearly and consistent with one another, and will provide a framework for elections that protects and advances international human rights. 37The Cater Publication on Election Obligations and standards (2009) spells out that electoral issues that a legal framework on elections should address include: the protection of human rights and fulfillment of obligations as well as any derogation measures; the role of state authorities, including the EMB, in upholding rights; the

37 The Cater Center, 2009.

28 timing of elections and impact of the electoral calendar on human rights and obligations; the

need for the legal framework to be non-discriminatory; and the right to an effective remedy. The

right to an effective remedy should include a provision for challenging election results where

necessary; citizenship rules should be clear and non-discriminatory; the legal framework should

include guarantees of equality before the law for men and women, and measures to promote

equality of minorities, and persons with disabilities; the framework only allowing for temporary

postponement of the elections in times of declared public emergencies, and including a realistic

electoral calendar that allows adequate time to successfully implement all aspects of the

elections, among others. 38

Sudan is considered an undemocratic nation despite its presidential election held recently. On the contrary, from the position of the South Sudanese government, the 2010 general elections is just a symbol of an emerging democracy, where it can be argued that a comprehensive legal framework that guarantees the independence and integrity of the electoral process, promotes consistency and equality in electoral management, and promotes full and informed participation in electoral events by political patiies, civil society organizations and electors are necessary prerequisites for democratic elections to be realized.39 According to the European Union Election

Observer Mission's report on The Republic of The South Sudan Executive and Legislative

Elections (201 O);.. the structure, power, functions and responsibilities of electoral management bodies arc defined in its legal framework that deals with electoral processes - the Constitution of the Republic of South Sudan (2005) and the National Elections Act (NEA) 2008. These stemmed from the Comprehensive Peace Agreement (2005). The establishment of the

3m The Cater Center, 2009. 39/DEA, 2006.

29 Comprehensive Peace Agreement (CPA) in January, 2005 brought an end to South Sudan's 22-

year civil war. The CPA constitutes a deal between the Khartoum-based government of South

Sudan, represented by the National Congress Paiiy (NCP), and the South Sudan People's

Liberation Movement/Army (SPLM/A), a former southern rebel group. In addition to several

other arrangements, the CPA provided for an interim period of six years during which the

country is ruled by a Government of National Unity (GNU) that represents both paities, as well

as for ru.1 autonomous Government of South Sudan (GoSS).

Ultimately, the interim arrangement paved the way for a referendum on independence for the

South Sudan in 2011. It was decided that general elections were to be conducted at the halfway point (European Union Election Observation Missio11- report, 2010). The frainework of South

Sudai1's 2010 elections was mai·ked by its complexity and it reflects a high level of ainbition.

The National Elections Act, passed in July 2008, stipulates elections for political offices at six different levels, ·n~ely for; he presidency of the GNU; (the presidency of the GoSS; state governorships; the national legislatme, consisting of the National Assembly ai1d the Co1mcil of

States; the South Sudan Legislative Assembly; and (vi) the State Legislative Assemblies. The executive branch of government - the presidencies and state governors - is to be elected by using a majoritarian, 'first-past-the-post' system. A mixed system is used for the election of members for the natio11al, the southern and the state legislatures: 60 per cent of the members of the

National Assembly, the South Sudan Legislative Assembly and the State Legislative Assemblies will be elected through a majoritarian system, while the remaining 40 per cent will be elected on the basis of proportional representation, with 25 per cent of the seats being reserved for women closed list and 15 per cent party closed list. The Council of States wiil be made up of two

30 representatives from each of South Sudan's 25 states, to be selected by each State Legislative

Assembly.

Though the legal framework is in place, the crisis in Darfur continues to cast a shadow over other

issues dominating present-day South Sudanese politics. The protracted nature of the crisis raises

sei-ious doubts with regard to the feasibility of Darfur participating in the elections. 4°Fu1ther to this, a section of academicians argue that it is generally good to lay down transparently a legislative fri).!Ilework for electoral processes, but remain skeptical of the practice as noted by

Collier (2009), in his book, 'Wars, Guns and Votes: Democracy in Dangerous Places. Collier

(2009) stressed that: "competitive elections in themselves do not provide an easy way out for low income countries that are experiencing protracted political violence. He further warns against the simplistic assumption that they offer a 'quick fix' and subsequently attempts to refute the hypothesis that "where people have recourse to the ballot, they don't resort to the gun". Zeeuw

(2009), supports this argument and notes that Collier's message is clear and has previously been referred to by others while debating the viability of democratization in impoverished, conflict­ ridden countries (such as South Sudan).

The provision of the Article of Elections Acts of 2008 on terms of appointment of the

Commission members, where the Chairman and the Deputy Chair are appointed to serve on full­ time basis while the other seven members are serving on pa1t-time basis, subject the Chairman and tl1e Deputy to incline or lean towards the ruling party's compromised deliberate position in favour of contentious issues that push the ruling patty against the wall, leave alone the fact that the commissioners on part-time basis ai·e deprived of their utmost time and effort to run smooth

40BBC New;, 2005

31 and flexible elections. In addition, the omission of the criterion to determine the limit of

expenditure for parties' and candidates' electoral campaigns in the electoral act is a gap that

cannot be ignored.41

3.2. Universal Standard

International elections standards are universal principles and guidelines to promote genuine

democratic election processes. International standards have evolved from protocols,

declarations, treaties, and other international instruments that safeguard democracy and human rights. International standards for democratic elections are not prescriptive norms. They do not mandate thi!t a particular election system or explicit laws be applied. Instead they are principles to guide the development and implementation of election systems, laws, policies and procedures concerning democratic election processes. The chance that South Sudan by the set principles failed to have elections was due to the continued wars in the country. International standards of elections have evolved from protocols, declarations, treaties, and other international instruments that safeguard democracy and human rights. International standards for democratic elections are not prescriptive norms. The Standards provide for the basis of the legal frame work the is used by most nations even South Sudan in the Law books. They do not mandate that a particular election system or explicit laws be applied. Instead they are principles to guide the development and implementation of election systems, laws, policies and procedures concerning democratic election processes. All international election standards can be traced back to the cardinal principle that Citizens have a right to take part in the

'"NEC repo1t, 2010: 53

32 governance and public affairs of their countries. Thus, international standards provide a

leeway for elections and also ;:ibiding by them brings the rights to action.

Atticle 21, Section 3 of the United Nations (UN) Universal Declaration of Human Rights

( 1948) ensfuines this cornerstone precept:

"The will of the people shall be the basis of the authority ofgovernment; this will

Shall be expressed in periodic and genuine elections which shall be by universal And

equal sujfi·age and shall be held by secret vote or by equivalent free voting

procedures." The International Covenant on Civil and Political Rights (ICCPR)

(I 966) stipulates That every citizen must be provided the right and opportunity,

without discrimination Based on distinctions of "race, color, sex, language, religion,

political or other opinion, National or social origin, property, birth or other status"

and without unreasonable restrictions, to "vote and to be elected at genuine periodic

elections. "

UN General Comment 25 on ICCPR Article 25: The right to participate in public affairs, voting rights and the right of equal access to public service (1996) articulates, an1ong other criteria for democratic elections, the following principles:

• Freedom ofpolitical association, i.e. to form and / or join political parties

• Freedom _of peaceful assembly, i.e. to hold and participate in political events and

rallies

• Freedom of movement, i.e. to travel without undue restriction to Build electoral

support

33 • Freedom of information, i.e. to seek, receive, and Offer information to make

info1med choices

• Freedom of political expression, i.e. to articulate suppoti for a choice without

recrimination

• Freedom from coercion, i.e. to exercise political choice without intimidation or fear

of retribution

• UN covenants and declarations to protect and promote the rights of marginalized

peoples, i.e. the Convention on the Elimination of All Forms of Racial

iscrimination (CERD) (1965), Convention to End All Discrimination Against Women

(CEDA W) (I 979), and Convention on the Rights of Persons with Disabilities

(CRPD) (2006), among others, stipulate relevant obligations for member states in

election process. Inter--- governmental bodies in Asia, Africa, Europe, Latin

America, And the Middle East have also developed guidelines concerning

democracy, human rights, and elections ratified by member states or which states are

obli,g',d to ·respect. Moreover, the UN and other inter---governmental institutions have

acknowledged the role of International and domestic observers as 11011---

participants in election processes.

3.3. Regional Standard

The African Chatter on Democracy, Elections and Governat1ce (the Chatter) was adopted on 30

Januaty 2007 during the 8th ordinaiy session of the Assembly of the African Union. It aims to reinforce the corpmitment of the States Parties of the. African Union towards the protection of democracy and the rule of law, as well as human rights. The Charter takes its inspiration and

34 roots from several UN resolutions, as well as in a number of Declarations and Decisions of the

Organization of African Unity (OAU) / African Uniori (AU): Since the beginning of the 1990s,

several UN resolutions called on Member States to establish and reinforce the promotion and

consolidation of democracy. The 1990 Declaration on the Political and Socio-Economic

Situation in Africa and the Fundamental Changes Taking Place in the World.42 The 1995 Cairo

Agenda for Action for Re-launching Africa's Economic and Social Development.43The 1999

Algiers Decision on Unconstitutional Changes of Government in Africa.44

The 2000 Lome Declaration on the Framework for an OAU Response to Unconstitutional

Changes of GoverI\ment.

The 2002 OAU/AU Declaration on the Principles Governing Detp.ocratic Elections in

Africa.45The 2003 Protocol Relating to the Establishment of the Peace and Security Council of the African Union. 46In adopting the African Charter on Democracy, Elections and Governance, the African Union sought to consolidate all past commitments made within the ambits of the declarations and decisions rielating to democracy and governance. A careful reading of the

Chmier reflects that it firmly and unequivocally seeks to establish a political culture of change, based on the holding of regular, free, fair, and transparent elections conducted by competent, independe1it, and impmiial national electoral bodies. In establishing shm·ed values on democracy and governance, the Chmier is significant to the established African Peer Review Mechanism

42 Available on the following web page: http://www.chr.up.ac.zalhr_docs/african/docs/ahsg/al1sg33.doc [Accessed: 13 April 2010 43 Available on the following web page: http://www.chr.up.ac.za/hr_docs/african/docs/ahsg/ahsg40.doc [Accessed: 13 April 2010 "Available on the following web page: http://www.africa-union.org/Special_programs/CSSDCA/cssdca­ solemndeclaration.pdf [Accessed: 13 April 2010] 45 Available on the following web p.age: http://www.pogar.org/publications/other/elections/declaration-africa-02.pdf [Accessed: 13 April 2010] 46 Available on the following web page: http://www.africa-union.org/rule_prot!PROTOCOL-% 20PEACE%20AND%20SECURITY%20COUNCIL%20OF%20THE%20AFRJCAN%20UNION.pdf[Accessed: 13 April 2010

35 (APRM) process and is seen as a complementary instrument. The Chaiier goes beyond the

confines of 'peer review and support' by embodying within it the ability for the Peace and

Security Council of the African Union to act positively when there ai·e deep lapses in

governance, as may be reflected in, for example, an unconstitutional change of government. The

Charter also provides positive incentives and empowers the Electoral Assistance Fund to support

effmts at improving the conduct of elections in Member States. This Chillier, which requires

ratification by 15 States to become effective7, is one of the rare instruments in international law that establishes democracy and people's participation as individual fundainental rights. This

Chai-ter " ... not only is impo1tant but also opportune, allowing indeed the African Union to carry on more rigorously its continental project in the field of democracy, pilliicipative development and peace.

Implementation takes place successively at national, regional, and continental levels with, at each level, al} actor identified as a focal point in charge of particular responsibilities: the State at national level, the regional economic communities at sub-regional level, and the African Union at the level of the entire African continent. The Chillier emphasizes that it is foremost the States themselves with the duty to apply its stated objectives by making efforts to guarantee the confo1mity of their legislations with the Chaiier, by translating the Chillier' s relevant clauses into domestic law, by ensuring the dissemination of the Charter at national level, and by integrating the objectives and principles stated in the Chillier into national policies and strategies. As regards regional economic communities, they ai·e requested to encourage States to become Pilliies to the

Chillier, and they shall, "designate focal points for coordination, evaluafion and monitoring of the implementation of the commitments and principles enshrined in this Chillier" (Article 44 ).

36 Article 44 of the African Charter on Democracy, Elections and Governance stipulates that

African Union CAfrican Charter on Democracy, Elections and Governance commission is at the

core of the system of safeguard as it, "shall develop benchmarks for implementation of the

commitments and principles of this Charter and evaluate compliance by State Pa1iies".

According to Article 49, the Commission is also the authorized instance to receive reports that

States Parties submit every two years concerning, "the legislative or other relevant measures

taken with a view to giving effect to the principles and commitments of the Charter". As part of

the process of popularizing the Charter and its contents, the African Union Commission has convened a number of meetings with States Parties and civil society organizations. Collectively these meetings served to widen ownership over the Chru.ier and re-establish the strategic role of all State and non-state institutions for the Charter. Through its own processes, the Commission encouraged the establishmerit of wider and more far reaching for promoting the

Chru.ier and facilitating its entry into force. Given the impo1iance of the Chru.ier, the African

Commission on ..Human and Peoples' Rights is considering the possibility of including the Charter as a standing agenda item in all of its sessions. It is anticipated that its inclusion as an agenda item would serve to fu1iher facilitate the process of Member State ratification of this document.

The charter is very significant to both NHRis and the implementation of the Paris Principles, as

Article 15 of the Charter provides that "State Parties shall establish public institutions that promote and support democracy ru.1d constitutional order." It further provides that such institutions_' autonomy should be guaranteed by the Constitution and should be provided with resources to perfonn their work.

37 According to article 50 of the African East African Community provides that formal economic

and social integration in the East African Region commenced with, among other things, the construction of the Kenya Uganda Railway 1897 - 1901, the establishment of the Customs

Collection Centre 1900, the East African Currency Board 1905, the Postal Union 1905, the Court of Appeal for Eastern Africa 1909, the Customs Union 1919, the East African Governors

Conference 1926; the East African Income Tax Board 1940 and the Joint Economic Council

1940;

AND WHEREAS provision was made by the East Africa (High Commission) Orders in Council

1947 -1961, the East African Common Services Organisation Agreements 1961-1966, and the

Treaty for East African Co-operation 1967 for the establishment respectively, of the East Africa

High Commission, the East' African Common Services Organisation and the East African

Community as successive joint organisations of the said countries to control and administer certain matters of common interest and to regulate the commercial and industrial relations and transactions between the said countries and by means of a central legislature to enact on behalf of the said countries laws relevant to the purposes of the said joint organisations;

AND WHEREAS in 1977 the Treaty for East African Co-operation establishing the East African

Community was officially dissolved, the main reasons contributing to the collapse of the East

African Community being lack of strong political will, lack of strong participation of the private sector and civil society in the co-operation activities, the continued disproportionate sharing of

38 benefits of the Community among the Partner States ·due to their differences in their levels of development and lack of adequate policies to address this situation;

AND WH~REAS upon the dissolution of the East African Community the said countries signed on the 14th day of May, 1984, at Arusha, in Tanzania the East African Community Mediation

Agreement 1984, hereinafter referred to as "the Mediation Agreement" for the division of the assets and liabilities of the

39 CHAPTER FOUR

FINDINGS OF THE STUDY

4.0 Intrnduction

The first section deals with summary of the findings, which is followed by the discussion in relation to the research objectives, and conclusions. The third section focuses on conclusions while the final section presents recommendations followed by areas for further research. The study examined the effect of electoral mass sensitization on democratic elections in South Sudan, the influence of electoral legal framework on democratic elections in South Sudan, and the influence of electoral supervision on democratic elections in Sudan.

4.1. Rights of Citizens During and After Elections

Right to vote or be voted

Act Article 98 of the transitional constitution stipulates that the qualifications that an electoral candidatemust; be south Sudanese by bilih, be of sound mind, at least fo1iy years of age in case of preside!)!, shall· be literate and must not have been convicted of any offence. This is the reiteration of Article 98 of the transitional constitution of Republic of South Sudan. It's right to say that every person of the above qualification can be elected to or elect any person to act as representative in character for that matter, to any office that's not subject to appointment by any judicial or executive authority. For some reasons this right ignited from violation to run for a term in the office of your choice by political suffocation or frustration amounting to withdrawal from political interest so, the constitution stepped in to make sure one realizes his/her interest in politics and in the public as the case might be.

41 Due to some reason that is politically calculated to the opinion of the court, the electorate is

denied the right to elect a representative of his choice, this could be attributed to tribal politics,

nepotism and political captivity that might force the electorate to elect the representative that is . . . not of his choice. This is commonly founded with in South Sudan where people are divided in

ethnic lines, tribal and regional perspective say, Equatoria, upper Nile and bar el ghazel. This is

how its exercised, a person from upper Nile will elect one from upper Nile and the one from

Equatoria will do same and the person from Bar el ghazel. In tribes it's the same amongst Nuer and Jieng as well as Dor.

Freedom of Association

Article 21 47 of the Universal Declaration of Human Right or bills of rights, stipulates that;

Everyone has the right to take part in the government of his country, directly or through freely chosen representatives, Everyone has the right of equal access to public service in his country and the will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

Under Article 25 of the transitional constitution of South Sudan which provides that every south

Sudanese has a right to associate with any association of his or her choice provide such association, is within the knowledge of the law. The association is within the knowledge of the law if its registered by the bureau concerned with the formation of the association. This right under the constitution extends to associations of trademarks just for avoidance of doubt to the

47 Universal Declaration ofHuman Rights (Article 21)

42 readers of this research work but, it is concerned with election, one electorate must belong to a registered association or registers the association that he sought to fonn as such.

In South Sudan, there is no such a freedom or the right due to the fact that people are divided under Ethnic lines in a way that one cannot talk to person that is not a tribe mate or share political opinions freely because of the political crisis in 2013 and in 2016 as well as 1991. For example, Nuer talk to Nuer and Dinka talk to a fellow Dinka and this chain of disassociation a buses the knowledge of Article 25 of the constitution that allows such a fruitful freedom.

Freedom of Expression

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. Article 10 of the European Convention on Human

Rights does prevent States from requiring the licensing of broadcasting, television or cinema enterprises: The ·eX:ercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, inthe interests of national security, teITitorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

The right is stipulated under article 24 of the transitional constitution of South Sudan. The freedom of expression is to the effect that it must be exercise by the citizen with consideration of

43 other. The· common slogan is that "freedom abused is freedom taken" this means that the

freedom of expression isn't absolute as it can be withdrawn by the state granting. So often

majority of citizen abuses this freedom under the disguise of fair comment or truth when

expressing their opinion. Sometime the right is abused by insults, slander and libel against the

government as people cannot distance their emotions from politics and fairly comment given the

subject to talk about.

In South Sudan the only expression you are allowed to give is "SPLM/Aoyee" and any other

expression _is unwelcome. Most people would think that South Sudan is one party system kind of

politic, you would be disappointed that its multipmiy system only that other parties are not

allowed to express their opinions freely about the mistakes of the ruling pmiy.

Right to expression also extend to voters during election in a style that the must say what the

think of the candidate per se. there was one election that was held in 2010 in South Sudan and

this election was one sided because no one wanted to be associated to the Unity and seen the

other candidate was pro unity with Northern government he plunged the election terribly and the

separation won the election under Salva Kiir, something that no one would speak the contrary or

else you face the regrets of your life. However, on the other hand, there is freedom of expression

in South Sudcill as so many other can call dinka MTN and Nuer call Dorr nyarnnaym as well as a

lot of rebels but majority are rebels are members of the ruling party and since m·e allowed to express their opinion the explores another alternative and that is to be rebels or speak through

bulleting of the issues or kill each other if they are not allowed to speak their grievances and exchange their opinions.

Freedom of Lawful Assembly

44 This right is often seen as an act causing public disturbances as it can amount to intenuption of the market as well as the economy and if its poorly organized can cause death as a result of confrontati?n with. the police during the assembly. iJ; is nmmally termed as the post-election violence due to the gravity of it damages accruing from havoc or curfew. The assembly is only lawful if it has been authorized by the supreme court or judicial officer in which case is Chief

Justice. Most of the rallies in South Sudan are only allowed if they are pros and not cons to the government, as one of the generals was quoted saying "we only have bullets and not the tear gas". That is how wicked the right to lawful assembly has been abused in South Sudan. But because the right is sometime associated with the looting and theft police finds it costly to bear with assemblies organized for purpose of such behavioral hence the suppression of the assemblies-from the grassroots. In the neighboring countries the freedom has also met blockade.

For instant in Uganda the president was quoted on al Jazeera saying" th.at he does not tolerate demonstration because the roads in Kampala are narrow as such the demonstrator would encounter accidents from bodabodas to you and I that would not be reason to cover the phobia for assembly but to him it amounts to sufficient intelligence. In Kenya protestant, Kenneth was killed on spot by police officers without fear of international community and san1e was the course in 2007. For the case of Kenya is somewhat democratized as it's the first African countries to nullify the presidential election on grounds of irregularities and of votes at the polli~g stations and by the returning office~s. Thus, the existing freedom is the most adversarial of all freedom granted to the electorates in the nations which is most likely to be reflected in South Sudan .

Right to Equality and non-discrimination

45 The right is contemplated under Article 14 of the transitional constitution. These rights violated

by religious discrimination, tribal, sex racial and regional discrimination. There various types of

the some of which are mention as well as political discrimination and economy discrimination.

Right now am looking at the political discrimination, which exercise by the inequality at

representation. For instant women are often in few numbers in parliament compared to their

counterpart: men. This right is universally recognized by Universal Declaration of Human Right

under Article 7 which provides that all are equal before the law and no orie shall be subjected to

discrimination and accorded equal protection of the law. In SADC principles and Guidelines on

Democratic Governance, stipulate that there shall be equality in electoral process and the ' government within the region of SADC. Equality has also been reflected in Africa Charter on

Democracy Election and Governance under Article 10 etc. equality means 50 to 50 in case of any sharing or oppo1tunity and in South Sudan women are given 25% and men with 75%. This to me isn't equality: .

However much the constitution provides for equality before the law between men women it would remain in theory and not in practice as men shall always consider women as inferior to them. What men can do women cannot do the fan1ous saying that emerge from Germany after

1914 crisis. We have turned this saying to 'reverse' is trne. To lesser extend women equality is implemented by the equal opportunity commission. that is established by the constitution.

Inequality does only occur to women alone but also amongst men during and after election as the election defeats means denial of job opportunity just because you are not member of the winning party. In South Sudan, tribal and regional inequality is the talk of the day, which ushers in electoral unfairness which limits electoral rights since there is no freedom.-

46 Right to l'olitical Tolerance

South Sudan is a multiparty system politically, to increase the involvement of the citizens in the

democratic process. Citizens are allowed have freedom of association to fo1m political parties of

the choice or joint them all the same but it isnecessary that the electorate affiliate to apolitical

party. In fact, South Sudan b.eing a new country, people are inclined to think that Sl'LM is the

party of the heroes and the want it to be the only pmiy dominating the government to the extent

that any other party is for traitors or rebels. Even rebels call themselves as IOs which Meaning

SPLM in opposition, why can't they just be called rebels because they are rebels against the state

and not SPLM strictly speaking, that is how much people love that party. This has sideline other

political pmiies forcing them to collapse dramatically. In South Sudan politician would like to

think of other in their ethnic trends and regions of course. For instant the 2012 reshuffling of the

government that lead to the removal of the Garange Turks also known as Garange Boys. The

likes of MajakD'agoot and Deng Allor etc. and removal of Riek on no grounds landed Us in

crisis in 2013 and 2016 respectively. Had it not been political intolerance and ingenious such

even could not have occasioned. It's imp01iant to know that political tolerance extends beyond borders be it, asylum seekers or extradition of the political escapees. Political tolerance can be exercised regionally for example ECO WAS, SADC mid EAC, amongst others. Thus, there exists the violation· of electoral rights in South Sudan which is not healthy for the Country's democracy.

Freedom of access to information and media

This freedom is enjoyed under Article 29 of the transitional constitution laws of South Sudan.

Section 10 of the National Election Act 2012. The freedom is to the effect that candidate must be accorded equal right to access information concerning elections during and after the election as

47 the case may be. The information shall be disseminated by the electoral commission for example the procedures of registration, the geographical allocation of the constituencies and the polling station and the time in which next election will be held. The right to access to media is in a way that all candidate must be allowed to express their opinions on TVs · and the social media platforms. In South Sudan this right is violated occasionally as people are not allowed to criticize the Government on Television or Facebook and twitter. For example, there was one scenario concerning a boy that anested at the border between South Sudan and Uganda. After he has engaged in criticizing the government. People are also picked from airport or houses regardless of where you mocked the government as it appears to them. One of the others said if you press the liberator he b~cpmes a tyrant.

Right to litigation or challenge the election in the court oflaw.

Every aggrieved party contesting the election can challenge the election tln·ough judicial process under A1ticle 20 of the transitional constitution of South Sudan.

48 4.2 Duties and Mandate of the electoral commission under the constitution

A1iicle 197 of the 2011 Constitution of South Sudan stipulates that an electoral body shall be

formed in one months after the passing of the constitution into law. In addition, the provision

emphasized that it shall be an Independent Commission and its name shall be known as the

National Election Commission. Fu1iher, there shall be an electoral law enacted and passed to

guide the affairs of elections in South Sudan as a campus to all electoral processes for

48 commission and the country at large and it has since been enacted into force . The commission

is mandated to cany out and oversee all national electoral processes in South Sudan. The

commission has since come into existence and it has been responsible for the initial elections in

south Sudan and shall be responsible for any elections that will be carried out in South Sudan.

The work of the commission comprises the key centerpiece for electoral rights and it role is to

stabilize any conflict that may arise from an electoral process. It is worth to note the contentions

have been risen relating to the operation of the Commission in relations to pmiialities and not

guaranteeing the rights as provided in the constitution. Thus, the constitution of South Suda11

provides for the enactment of the law that ensures rights relating to election to all nationals for

the participation of willing citizens for the democratic Governance of the country.

The constitution further provides for the nature and character of persons that qualify to be

member of the commission relating to elections in south Sudan. The constitutional provision provides that the people should be people of Integrity that has been proven. That is so to provide an image of sanctity to the national electoral commission of the country to win the trust of the electorate, which suppo1is electoral rights of the people in the democratic state. In addition, competence, impfiliiality and non-pmiisansm should be part of the electoral leaders. The fact the

48TheNational Election Act 2011

49 chairperson of the commission and members of the board are appointed by the president in

power creates a question relating to commission members being partisan, which in the encl may

49 limit electoral rights in the country • Thus, the supreme Jaw of the land also provides for the

character of people to lead the electoral body although questions on affiliation to the appointing

authority can arise which may compromise the competence of the commission hence hindering

the rights of the voters.

Advisory jurisdiction & Quasi-Judicial Functions: Under the Constitution, the Commission

also has advisory jurisdiction in the matter of post-election ineligibility ·of sitting members of

Parliament and State Legislatures. Additionally, the cases of persons found guilty of dishonest practices at elections which come before the Supreme Comi and High Comis are also referred to the Commission for its opinion on the question as to whether such person shall be disqualified and, if so, for what period. If can further offer advice to candidates in case any electoral issues

50 arises in its Jurisdiction • The commission carrying out its mandate under the law brings the electoral rights to life. The judgment of the Commission in all such matters is binding on the

President or, as the case may be, the Governor to whom such opinion is tendered. Thus, the electoral commission's decision is binding on all paiiies in issues relating to elections but an aggrieved patiy can always run to the courts of law for a remedy. Lastly, The Commission has \ the power to prohibit a candidate who has failed to lodge an account of his election expenses

51 within the time and in the manner set by Iaw • Therefore, The Commission has also the power to remove or reduce the period of such disqualification as also other disqualification under the law.

49 Article 197 of the 2011 Constitution of South Sudan 50Section 68 of the National Elections Act 2012 51Section 67 of the National Elections Act 2012

50 Organizing elections: Election commission plays a vital role in organizing elections. The most critical challenge before the Election Commission of South Sudan is to implement nonns and the

Model Code of Conduct to ensure free and fair elections in the country. Its existence and independence are necessitated by history, which has revealed that self-governing elections are not free from disruption. Towards this end, it has been empowered to supervise political parties and candidates and take appropriate action in case of violations. The existence of the commission and the law in support of it is to promote the participation of people in elections and provide an

52 assurance of regular free and fair elections in the country • Thus, organizing regular free and fair election supports. the concept of electoral rights in south Sudan.

South Sudan's failure to organize elections in 201553, was greatly linked to the devastating civil war, whereby Multiple attempts at peace deals failed, thus the making the country to become the most dangerous country in the world for humanitarian workers who could aid to make the elections a success. This is because South Sudan's election could only be held in a stable environment where people are not displaced by violence and hunger and in which they are able to express their political views free from intimidation.

Administrative P~wers: The electoral cormnission ofSouth Sudan also has the duty of deciding the te1Titorial &reas of the electoral constituencies tln·oughout the country. The process is based on the Delimitation Commission Act of Parliament, organizing and periodically a.mend electoral rolls and to register all qualified voters, informing the dates & schedules of election. Even more, scrutinizesthe nomination papers, grants recognition to political parties & allots election symbols to them and acting as a court for settling disputes related to granting of recognition to

"section 5 of the National Elections Act 2012 "'United Nations report, 2015 51 political paiiies and allotment of election symbol to them. The rolls are done to facilitate the rights proved for under the law. In addition, it regulates political parties and registers them for being eligible to contest electionsand publishes the allowed limits of cainpaign expenditure per candidate to all the political parties, and monitors the saine.Furthermore,It guarantees that all the political parties regulai·ly submit their audited financial reports. Also,· The Commission can repress the results of opinion pollsif it deems such an action fit for the cause of democracy.

More, so, The Commission can recommend for disqualification of members after the elections if

54 it thinks they have violated certain guidelines • In fact, In case, a candidate is found guilty of dishonest practices during the elections, the Supreme Court and High Comis consult the

Commission. Consequently, The Commission can postpone candidates who fail to submit their election expense accounts timely. Thus, the administrative role of the commission are extensive as provided for under the law but the legal frame work is in existence to bring the law to pass and give life to electoral rights.

EC appoints tltefollowing:-

Chief Electoral Officer: Electoral Commission in consultation with State Government/Union

Territory Administration nominates or designates an Officer of the said State/UT as the Chief

Electoral Officer to supervise the election work in the State/UT

Regional Election Officer: Electoral Commission in consultation with the State Government/

Union Te1Titory Administration designates an officer of the said State/UT as the District Election

Officer to supervise the election work of a district

"section 24 of the National Elections Act 2012. 52 Returning Officer: Electoral Commission in consultation with State Government/Union

Territory Administration nominates or designates an officer of the Government or a local authority as the Returning Officer for each assembly and parliamentary constituency. Returning

Officer is responsible for the conduct of elections in the parliamentary or assembly constituency and may be assisted by one or more Assistant Returning Officers (again appointed by EC) in the

0 performance ofhis functions

Electoral Registration Officer: Electoral Commission appoints the officer of State or local government as Electoral Registration Officer for the preparation of Electoral rolls for a parliamentary/ assembly constituency.

53 CHAPTER FIVE

CONCLUSIONS AND RECOMMENDATIONS

5.1. Introduction

Perhaps, it's interesting that these findings in chapter four are basically in south Sudan, but matters relating to elections _are continental in Africa and so the same violations of electoral rights is equally so in Nigeria, Kenya, Congo as well as the case study.

5.2. Conclusions

South Sudan has done little to ensure mass sensitization of the people, hence compromising the democratic processes of the country. This is despite the finding in agreement of the hypothesis that electoral mass sensitization has a significant effect on democratic elections. The electoral commission only appears to pay lip service to various aspects of mass sensitization but nothing is done beyond that.

From this study, it is true and unassailable that elections have been an integral part of African politics since independence and will continue to be. Sudan has a legal framework in place to regulate the conduct of democratic elections. However, implementation is not easy given the - complexity and ambiguity of the laws in place which baffle even the most _seasoned legal minds.

As seen in the study, the violation of the electoral rights in South Sudan includes; denial of right to vote, failure of mass electoral civil education and gerrymandering of votes. Postponement of elections if not a clear ground of internal insecurity of South Sudan, it can also be said to be a violation of elections. Therefore democracy must be looked at, as a point of granting all the rights discussed in chapter four above this include; right to vote / be voted, representative government, and political tolerance.

54 5.3 Rccommrndations

The Gover:1ment.ofthe Republic of South Sudan should revisit the appointments of the National election Co111111issioners. Instead of appointing Co111111issioners through the State Governors, the use of Local Electoral Cycle and management could be developed and exercised to redress this concern.

The Government of the Republic of South Sudan should p01iray the will to implement the electoral law~ on the ground and not merely leave them on paper.

There is need to enable better supervision of the electoral process. It is true that some aspects of supe;,-vision are adhered to but more needs to be done and more can be done through facilitating the Sudan Electoral Commission with sufficient resources to allow it carry out its constitutional duties.

There is also need to enable independence and total elimination of political influence from the government in all election-related matters in the country. This independence is at the core of democracy and the Electoral Commission must not only supervise well; it needs to be seen that it is supervising well.

A sound legal framework is key for democratic elections to be realized, therefore, in the long­ te~m, a review of the South Sudan National Elections Act (2012) is needed. This should be done in the light of best practices in exemplary democracies in Africa such as Ghana. Amendments may need to be made in view of recent experience and findings of this study in order to clear out the grey areas which are a source of confusion to many an ordinary citizen. What needs to be done immediately, however, is to enforce the law as it is. This will take the country a few steps fmiher on its path to ensuring democratic elections.

55 5.4. Conclusion

The creation and expansion ·of a conducive environment for the exercise of the rights of the

Electoral Commission and Citizens towards their;right to vote or be voted,freedom of

association, freedom of lawful assembly, right to equality and non-discrimination,right to

political tolerance, right to litigation or challenge the election in the conrt of law and freedom of

opinion and expression during elections, including to communicate dissenting views, is vital to

strengthening democracy and the pursuit of national reconciliation and peace in South Sudan. In

line with its human rights obligations, the Government must guarantee freedom of expression to

everyone who manifests his / her opinions - both online and offline so that their contributions

and opinions might shape their cotmtry' s future. As the present report shows, the restrictive

domestic legal framework, which criminalizes defamation and does not clearly define the clauses

limiting th~ exe1:cise of freedom of expression, leavt!s a wide margin of interpretation which might lead to arbitrary implementation. As media outlets and civil society play a key role in promoting good governance and accotmtability, journalists and outspoken civil society actors have been especially targeted with censorship, harassment, threats and violence. As a result, citizens fear criminal prosecution for expressing their views or are concerned about their safety, and tend to practice self-censorship. Main concerns include a restrictive legal framework and the imposition of undue restrictions by State institutions, at the national and local levels, including by security forces, to the legitimate exercise of the rights of citizens during elections.

56 Bibliography

I. Edward Thomas: South Sudan slow development. Pg. 89.

2. European Union Report on 2010 Election in South Sudan

3. Electoral Commission Report 20 I 0

4. Interviews to Staffs working in Electoral Process

5. Inter-governmental Authority for Development(IGAD) Report on Referendum 2010 in South

Sudan ·

6. Internet website; Wikipedia, Google.

7. Newspapers; citizen 2010. Daily monitor 2010

8. New Vision front page 2010

9. Magazine. Chamber of Commerce

10. Report by African Union Observers

11. SADC Principles and Guidelines on Democratic Elections

12. SSBC

13. Television, Aljazeera, CNN and BBC

14. Untold story pg.120 by Hilde Johnson

57