Fresh demands by the South Sudan holdout group for a permanent constitution before the December 2024 elections have kicked off debate on the likely consequences of an election without a supreme law.

With the country having failed to meet the September 2020 deadline for a permanent constitution, all indications are that the demand by the South Sudan Opposition Movement Alliance (SSOMA) for one before elections cannot be achieved in six months. This means the country could go to an election without clear constitutional provisions to guide the process.

But close associates of President Salva Kiir maintain that the government can rely on the South Sudan Transitional Constitution, 2011.

Yet, the 2018 Revitalised Peace Agreement in Chapter 6 prescribes a constitution to guide the electoral and election processes.

Beny Gideon Mabor-Undersecretary in the Ministry of East African Community Affairs said that there is no vacuum, as the country was able to hold a referendum in January 2011 without a permanent constitution. He said it is only a legitimate government formed after elections that can organise a constitution acceptable to all.

“Those talking about a permanent constitution before elections are essentially calling for another extension of the transitional government because the process is far from complete and will occasionally require adjustments at various stages,” Mr Mabor said.

The 2011 Transitional Constitution provides guidelines in Chapter 14 on who can contest an election, while much of the chapter focuses on the formation and the functions of the National Elections Commission (NEC).

They include preparation of the general electoral roll and annual revision; organising and conducting general elections, by-elections, and local elections according to the constitution and the law; and organising and conducting any referendum.

Unlike other constitutions in the region that are complemented by election laws, it has no mention of political parties and their conduct during elections, and no provision for electoral dispute mechanisms. But it provides for the winners to attain more than 50 percent simple majority.

Some observers are concerned that should the country go to elections without a constitution, the outcome can easily be rejected on a legal basis, and, in the absence of election-dispute mechanisms, the country could plunge into fresh violence.

In December 2023, Dr Riang Yer, chairperson of the National Constitutional Review Commission (NCRC), admitted that the 2018 peace agreement does not allow the holding of elections without a permanent constitution. He, however, said that getting the constitution ready before elections would depend on how technical the process will be.

Akol Miyen Kuol, a South Sudanese political commentator, said that the transitional constitution gives the incumbent president a lot of powers, including appointing and sacking governors and MPs.

“The public believes that such a constitution will be to the advantage of the status quo during elections. The leadership in the country should postpone the election until a new, inclusive and permanent constitution is prepared without a rush,” Mr Kuol said.

The SSOMA last week expressed their wish that the ongoing talks between the government and the holdout groups in Nairobi would result in a new social contract-like type of government and relations between the centre and the states; a permanent constitution, and a new interim government with a rescue programme—meaning the incorporation of those who were left out into the transitional government.

This would also mean another extension since their fourth demand is for the country to adopt “implementation modalities”. This is despite the 2018 peace agreement having clear implementation modalities that have fallen far behind schedule.

According to Chapter 6 of the 2018 Peace Agreement—which provides the parameters for a permanent constitution—South Sudan is four years behind schedule because the permanent constitution should have been in place by September 2020.

“The permanent constitution shall be completed not later than twenty-four (24) months following the establishment of the Transitional Period and shall be in place to guide the elections toward the end of the Transition,” it says.

The process is running under the Constitutional Making Process Act, of 2022—which was meant to establish a legal framework to govern the process of Permanent Constitution making.

It also outlines the design, procedures, form, powers and functions of the mechanism to be involved in the permanent constitution-making process.

So far, the NCRC—in charge of drafting the permanent constitution from oral presentations and memoranda—has completed its work and submitted its report to the Ministry of Justice and Constitutional Affairs.

Once the draft is approved by the ministry, the NCRC is supposed to convene a National Constitutional Conference (NCC) that will debate and approve the final document.

Dr Lam Akol, the leader of the National Democratic Movement (NDM) party, argues that the current constitutional arrangements are yet to seek the approval of people through the constitutional conference.

“The promulgation of a people-centred permanent constitution can only be done by a constitutional conference that is inclusive of all sections of our society,” said Dr Akol.

He said that there can never be a draft constitution without first resolving at least two cardinal issues. These are the system of rule (will the country be adopting a parliamentary, presidential or hybrid system?) and the type of federalism that best suits the peculiar conditions of South Sudan.

“Too much attention has been given to the NCRC to the extent of even assuming the powers reserved for the NCC,” said Dr Akol.

But Mabor faults Dr Akol for seeking to undervalue the role of the NCRC which is not only to collect views but to engage in public education to enable the ordinary people to effectively participate in the NCC.

“Given the high levels of illiteracy in South Sudan, how would the public effectively participate in the NCC without adequate sensitisation through the NCRC’s educational function,” he said.

Mr Mabor says that NCRC remains a key interlocutor in the design of the permanent constitution, guiding the debate on addressing the two cardinal issues mentioned by Dr Akol.