Carter Center Commends South Sudan on Inclusive Approach to Foundational Democratic Laws, Emphasizes Key Issues for Consideration by Assembly

CONTACTS: Juba, Jeffrey Mapendere +249 902 323 847; Atlanta, Deborah Hakes +1 404 420 5124

The Carter Center commends the government of the Republic of South Sudan (RoSS) for the inclusive and consultative approach it has taken thus far in its drafting of the National Elections Act of 2011 and Political Parties Bill 2011. With a new transitional constitution in place, it is critical that the spirit of inclusiveness continues as the Republic of South Sudan takes additional steps to form the foundation of its legal system as a sovereign country.

The Ministry of Justice has led efforts to hold consultative forums on both the Elections Act and Political Parties Act over the last month with the office of the president and vice president playing a key role in the political parties forum. This is an encouraging sign that the RoSS government welcomes a wide range of input and views on the key laws in South Sudan.

There are several areas of the National Elections Act and the Political Parties Bill that should be carefully reviewed and considered to help ensure that the RoSS meets international standards and best practices in the administration of elections and political parties.  Some of these areas include the electoral system, appointment procedures for the National Election Commission (NEC) and the Political Parties Affairs Council (PPAC), provisions for dispute resolution, and the right to an effective remedy.  This will help ensure that the two councils are best positioned to operate independently and that there are clear dispute resolution procedures to ensure that all stakeholders enjoy the right to an effective remedy.

The Carter Center urges citizens and civil society actors to provide input to the elections act and political parties act, and for the National Legislature to hold public hearings to seek input on the draft bills.  The deliberations and hearings held in the National Assembly would benefit from additional public information on the draft bills to publicize ways in which citizens, political parties, and civil society organizations can become involved.

During the workshop on the Elections Act on Oct. 6-7, convened by the Ministry of Justice with assistance from the International Foundation for Electoral Systems, Minister of Justice John Luk Jok affirmed that the workshop was just one venue in which to provide input, and that all South Sudanese had the right and responsibility to give further input to their elected representatives once the bills were taken up the assembly. One shortcoming of the workshop held on the Elections Act was the small amount of time – just one day – offered to participants to review the draft bill before being requested to provide feedback in the workshop. To its credit, the Ministry of Justice was able to correct this shortcoming for the review of the Political Parties Act, distributing it to political parties more than two weeks in advance of the consultative meeting, ensuring that any interested parties would have more than sufficient time to review and prepare feedback on the draft bill.  The International Republican Institute helped to facilitate and organize the Political Parties Leadership Forum (PPLF) meeting.

The drafting process for both bills has proceeded along a similar course: the Ministry of Justice prepared an initial draft of the bill, following which it solicited outside input in workshops/forums with relevant stakeholders (Oct. 6-7 for the elections act, Oct. 26 for the parties act). Following this the bill was reviewed again within the ministry to incorporate some of the feedback, and it is anticipated it will be submitted to the Council of Ministers as soon as possible for consideration and review.  After approval by the Council of Ministers, the Ministry of Justice may make additional final revisions before submitting the bills to the National Assembly for review, debate, and finally passage by a general majority of all assembly members.  The Carter Center urges that the legislation be moved forward to the legislative branch of government so they can begin their important work to review, debate, and pass these two bills.  The last step will be signature of the law by the president.

Summary of the Acts and Recommendations
The National Elections Act of 2011 will set the rules that will govern the administration of the next elections in South Sudan, anticipated to be held in 2015 before the terms of current lawmakers expire, as outlined in the Transitional Constitution of the Republic of South Sudan 2011.  The law creates a NEC made up of nine members appointed by the president and approved by parliamentary majority. The draft law keeps much of the old electoral system intact – elections would be held simultaneously for all state and national positions, with legislators apportioned by a mixed system that includes 60 percent of seats elected by majoritarian (first-past-the-post) constituencies, with 25 percent of legislative seats elected through the women's list and 15 percent of the remaining seats elected on a parties list.  One important change in the draft Elections Act was to simplify the balloting system by compressing the ballot for the party and women's list such that voters in polling centers would only cast one ballot instead of two.

Similarly, the Political Parties Bill 2011 will determine the rules by which political parties in South Sudan can legally operate, organize, and engage in politics in the new country. The bill creates a Political Parties Affairs Council appointed by the president that will provide oversight and regulation of parties in South Sudan.  The draft law requires that political parties be founded with a minimum of 500 members from at least five of the 10 states of South Sudan, that it be open to all South Sudanese, its leaders be democratically elected at all levels, and that its manifesto not contradict the Transitional Constitution of the Republic of South Sudan 2011. Two key requirements for political parties that might bar them from being active in South Sudan include a restriction on accepting foreign funding and a prohibition on connections or party support to any armed/paramilitary forces. However, during PPLF consultations, political parties present requested that the foreign funding restriction be relaxed since sources for domestic funding are very limited in South Sudan.

To facilitate public information and debate, The Carter Center has provided recommendations for stakeholders to consider as they further develop the draft electoral and political parties acts.  While it is important to emphasize the positive aspects of the drafting process thus far, The Carter Center recommends that once the bills have been submitted to the National Assembly, that members of parliament carefully review key aspects of the two laws to consider whether they are in line with international standards and best practices for democratic elections.  In particular, the National Assembly should assess whether the following rights are adequately protected: the will of the people shall be the basis of government; the right to genuine and periodic elections; access to information; the right to an effective remedy; equal and universal suffrage; prevention of corruption; and the right of every citizen to be elected, vote, and participate in public affairs.

In this regard, the National Legislature should carefully consider and review the following key issues in the two bills following their approval by the Council of Ministers:

1. Consider revising the appointment procedures for the Electoral Commission and Political Parties Affairs Commissions, which both are appointed by the president and approved by the National Assembly.  Alternative appointment processes that would enhance the independence of both bodies should be considered.  Trust in the impartiality and independence of these two bodies will be critical components in ensuring successful elections going forward;
2. Consider providing additional details about the complaints and dispute resolution systems described in both the Elections and Political Parties Acts to help minimize the potential for future conflicts and ensure that the right to an effective remedy is respected;
3. Consider in the Elections Act providing additional protections regarding the sections that remove governors by presidential decree in a state of emergency, or in a vote of no-confidence in the state assembly, to ensure that the will of the people as expressed at the ballot box is not easily undermined;
4. Consider in the Elections Act specifying that term lengths and elections for each house of the legislature be staggered to ensure continuity between legislative sessions and thus not every elected official will be campaigning for reelection simultaneously. Consideration could also be given to holding elections for different offices at different times;
5. Consider in the Elections Act providing further details about the electoral system, including the size and representativeness of the National Assembly, greater clarity regarding the voter registration process, and further details on participation of South Sudanese citizens abroad;
6. Consider adding a provision in the Political Parties Act that allows more than a 90 day window for the registration of political parties, such that new parties are not barred from legally registering;
7. Consider providing contribution limits to the financing for parties and further regulations on charities established by parties, particularly given that corporations can donate to parties and charitable organizations might be taken advantage of as a campaign finance loophole.

When considering these two pieces of legislation, it is important to note that some elements relate to the content of the Transitional Constitution signed into law on July 9, 2011, which should be further considered during the development of a permanent constitution for South Sudan.  While the Transitional Constitution contains important positive aspects such as a strong bill of rights, it also has several provisions related to the electoral system, terms of office, and powers of the president that set worrying precedents and should be carefully considered during the permanent constitution review.   Several civil society stakeholders have indicated that the final copy of the Transitional Constitution is not available to them.  The Center recommends that the government move to disseminate electronic and hard copies of the Transitional Constitution to civil society, media, and political party members to help ensure that South Sudanese have the opportunity to access this critical document.

One overarching concern with the electoral act that is reflected also in the Transitional Constitution relates to the large size of the legislature, which is not fully defined in the draft Elections Act.  Currently, South Sudan has more than 382 members of parliament split between the National Legislative Assembly (332) and the Council of States (50), which makes it one of the largest legislatures in the world when compared by population of the country.  Due to the large financial resources required by a large legislature, it is critical that the electoral system address the number of legislators that will be elected.  When designing the electoral system, legislators should consider the appropriate size of a legislature that South Sudan can support (assuming a new census and boundary delimitation exercise) while balancing concerns about adequate representation of the diverse groups in South Sudan and parliamentarians' accountability to constituencies.

Furthermore, it is important to review the power given to the president to dismiss elected governors and state legislative assemblies in event of the declaration of a state of emergency. Consideration should be given as to whether this power can be limited with additional checks to avoid abuse.  Another key issue to review relates to the number of times one can contest for the presidency.  The Transitional Constitution eliminated such term limits for the presidency and the electoral law is similarly silent. Term limits for all office-holders, particularly the president, should be considered during the permanent constitution review process expected to begin in January 2012.

It is also notable in both the Transitional Constitution and the Elections Act that members of the Council of States will not be popularly elected but shall be elected by members of the State Assemblies.  Alternative structures could be considered that ensure that members of the Council of States are directly accountable to the people.

The Carter Center believes the review and drafting process for the elections and political party bills is an important opportunity for the government of the RoSS to build consensus on the political and electoral system. While the transitional constitution drafting process was not sufficiently inclusive of grassroots or outside viewpoints, the drafting of these key laws in the new republic represents an important opportunity to rebuild trust amongst opposition parties and civil society actors and to foster genuine civic engagement.

Background on the Carter Center Mission
Following observation of the 2010 national elections and 2011 referendum, The Carter Center has been working in South Sudan since January 2011 to monitor the transition period, including the constitutional reform process, at the invitation of President Salva Kiir and the government. The international observation mission is supported by a joint Memorandum of Understanding between The Carter Center and Ministry of Foreign Affairs and International Cooperation on behalf of the RoSS. The mission assesses the transitional process in South Sudan based on the country's obligations for democratic practices and civic participation contained in national legislation, and regional and international agreements to which the majority of countries in East Africa have supported, including the African Charter on Human and People's Rights and International Covenant on Civil and Political Rights. The Center intends to issue periodic statements on its findings, available at www.cartercenter.org. 

####

The Carter Center was founded in 1982 by former U.S. President Jimmy Carter and his wife, Rosalynn, in partnership with Emory University, to advance peace and health worldwide. A not-for-profit, nongovernmental organization, the Center has helped improve life for people in more than 70 countries by resolving conflicts; advancing democracy, human rights, and economic opportunity; preventing diseases; improving mental health care; and teaching farmers to increase crop production. The Carter Center began working in Sudan in 1986 on the Sasakawa-Global 2000 agricultural project and for more than 20 years its health and peace programs have focused on improving health and preventing and resolving conflicts in Sudan. Please visit www.cartercenter.org to learn more about The Carter Center.