By Dr. James Okuk
February 9, 2010 (SSNA) — There was a legal double-standard in the 8th February 2010 Court ruling on the objection that was leveled by the SPLM-DC against the candidacy of the Sudan People’s Liberation Army (SPLA) 1st. Lt. General, Salva Kiir Mayardit. The error was in the terms of reference in the ruling that acquitted Salva Kiir and allowed him to run in the April 2010 elections with a SPLA green uniform on himself. The legal reference for elections is supposed to be the articles that are stipulated in the Sudan National Elections Act (2008) consonant with the Sudan Political Parties Act (2007). If the NEC and the Court does not recognize the dictates of the Political Parties Act, then something is not fair at all in the ongoing process for the general elections. It means a leader and members of any political parties can be military men in defiance of the Act. What a serious legal blow to multi-party civilian constitutional democracy in the Sudan!!!
In the Elections Act, “The Elections” is defined as “taking the opinion of the voters according to the Interim National Constitution of the Republic of the Sudan 2005 and this Act” and “Political Party” defined as the Political Party registered under the Political Parties Act 2007”. (Cf: Ch.I, Article 3). These two acts are the legal grounds on which the democratic transformation in the Sudan is supposed to stand, and they should have been the references used by the NEC and the Court in their ruling against or for objections to Salva Kiir’s candidacy. Even article 111(1) of the Interim Constitution of Southern Sudan (2005) stipulates clearly that the incumbent president of the Government of Southern Sudan (GoSS) shall only be the C-in-C of the SPLA prior to elections. Of course “prior to elections” ends with the “starts of elections process.” This could mean, once an incumbent president of the GoSS has put forward his name as a nominee for elections, then he entered into the starts of his elections process, and thus, he is supposed to abide by the laws that regulates the elections process with equal ground for all the contestants.
If some elections contestants like Salva Kiir and other SPLM nominees still have powers to give orders to military and security intelligence personnel in the South and direct them to act against the opponents in the competition for the top public jobs in the South, then something must be wrong in the conduct of April 2010 general elections.
As a strategy of running away from the comprehensive law application, and in fear and favour of Kiir and the clique’s reaction if their man is disqualified for the nomination to the post of the GoSS presidency, the NEC’s Chairman in his secret letter to Salva Kiir and his influence on the Court, abandoned the legal dictates of National Elections Act, the Political Parties Act, the Interim Constitution of Southern Sudan, and the Interim Constitution of the Sudan, and instead, when off selectively to bring in the CPA as the only source of their judgment on the objection against Kiir. The unfairness and avoidance of the right law became the rule of the game. But this running away to adopt an indirect source for the elections jurisdiction is unfair and makes the April 2010 elections unfair, right from here before we reach there.
Salva Kiir and his cliques like SPLM Secretary-General Pagan Amum and SPLM Treasurer Dr. Luka Biong said it contradictorily in different occasions and in the media that Salva Kiir is not retiring and is retiring from his SPLA active membership. For example, Mr. Amum said to press in Khartoum and Juba that Kiir is going to retire so that he could be nominated on a party platform to run for GoSS presidency. Dr. Biong told the UN Maraya FM in Juba before Amum’s statement that Kiir is not retiring because he has already been retired. Again, Salva Kiir himself said during the submission of his nomination papers to the NEC branch in Juba that he is not retiring from the SPLA because the constitution allows him to be a soldier while ruling the civilian, and that Dr. John Garang in his very Mausoleum near the Southern Legislative Assembly in Juba is the one who retired him from the army and those who don’t accept this can go and ask him in the grave.
Why talk of retiring and not retiring Salva Kiir who was already retired if those SPLM leaders are sincere to themselves and to the public who they are trying to hoodwink, thinking that they are intelligent and smarter than the people? Who can deny in the whole of Southern Sudan today that Kiir is not an active soldier in the SPLA? For instance, go and ask the SPLA officers in Malou-Rumbek Military Institute in Southern Sudan and they will tell you Salva Kiir and the company are terrible liars and dishonest comrades.
In the National Elections Act, it is stated that, the National Elections Commission “may postpone the elections of the President of the Government of Southern Sudan by a decision made thereby if it becomes impossible to conduct the election by reason of the proved occurrence of an eminent danger that may threaten Southern Sudan, or in case of declaration of the State of emergency according to Article 210 of the Interim Constitution in all the country, provided that the Commission shall fix a new date for elections, as soon as possible, which shall not exceed sixty days from the original date established for such elections. And Pending the holding of the postponed elections as provided for under subsection , the incumbent holder of the office shall continue in her/his office as caretaker, and her/his tenure shall automatically be extended until the elected successor takes the oath of office. (Cf: Article 27). Not only these, but also, the Chairman of the Commission and his Deputy are appointed by the President of the Republic with the consent of the First Vice President (Salva Kiir). Thus, the Presidency of the Republic may remove, upon a decision thereof, the Chairman or his Deputy or any other member of the Commission from office, for partiality or incapacity related to the functions, powers, and procedures of the Commission [Article 6 (1) (4) and Article 8 (2)]. Were the NEC Chairman and the Court afraid of this? Were they protecting their positions from reaction of Kiir and the company which might have led to their dismissal from the Commission and the Judiciary?
Even if it is tolerated by the NEC and the law courts that Salva Kiir can run for elections with his SPLA uniform on, still the Political Parties Act prohibits this. Is this Act not a law to be applies as well? Hon. Abel Alier and the Court said there is no provision in the NEC procedures and Elections Act and the Interim Constitution of Southern Sudan that prohibits military uniforms and titles to mingle and interfere in civilian politics. If this is the case, I think it is the right time now for the Sudan Political Parties Affairs Council (PPAC) to sue Salva Kiir in the court for defying the law that should regulate equally the conduct of all registered political parties in all parts of the Sudan; i.e., No Military Uniform in Civilian Democracy!!!
There should never be any exception for the SPLM, even if they threaten the public to return back to the bush if their man is disqualified. If the SPLM continue to be in government with such defiance to the civilian laws, then they should be sensitized that the bush is not reserved for them alone; others can become rebels to the bad SPLM rule in the South as good things continue to fall apart. The SPLM independent candidates who came up forcefully to detest the bad decisions and choices of Political Bureau is a great hint that the SPLM can never be immune from rebellion if its leaders continue to impose their bad rule on the people by any means, using their superfluous bush struggle and the so-called liberator credits.
It is known worldwide that the elections does not begin after the announcement of the winners, right after the sorting and counting of the votes at the polling stations or elsewhere; it begins with the registration of voters and then ends with the announcement of winners and their taking oaths of the offices that marks the start of the assumption of their public duty.
Of course the CPA tolerates and endorses temporarily the military uniform in the Sudanese civilian democratic politics because it was a deal between militants who were killing each others for decades out of greed for power and wealth of the nation. But after the CPA was signed and the implementation kicked off, the military men and women who ruled the people where supposed to hand the power to civilian through what is called democratic transformation for the devolution of powers. The SPLM military generals and the NCP field marshals where supposed to put off their military uniforms with stars, scissors and eagles on their shoulders after the mid-term interim period (1-4 years after 9th July 2005) if they want to continue ruling in the civilian governance institutions. This is what the Political Parties Act says. Alas!
The Elections Act stipulates that during the electoral campaign period, every public officer or public authority shall provide equal treatment to all candidates and political parties, in an impartial manner and without favour to any of them, in order to guarantee the principle of equal opportunities between them. Subject to the provisions of any other law, every candidate or political party shall enjoy complete and unrestricted freedom of expression and presentation of campaign programmes, and access to information in the exercise of their campaigning rights through any means in accordance with this Act and the Rules. [cf: Article 65]. With the favor and fear of Salva Kiir that have ruled the hearts of the NEC and the Court in the Sudan is there no reason to doubt the fairness and freedom of the April 2010 elections, particularly in regard to the case of Southern Sudan?
Anyway congratulations for Kiir and the company for having not got disqualified for elections contest because of the double-standards and lack of comprehensive legal application in the Sudan. The SPLM-DC knows that it is not all human being judges who are fair and impartial even when they pretend to be so. Even given the SPLA uniform on Kiir and military pistols in his hands, the SPLM-DC is ready to take the risks of campaigning for people’s confidence in the hostile environment of this allowed inequality by the law agents. The SPLM-DC and its allies are determined to stage a victory on the votes that shall elect Dr. Lam Akol Ajawin and his team as the best possible president and government leaders of the GoSS to save the South from being born as a failed State out of Salva Kiir and the cliques’ bad rule. The SPLM-DC members and their leader and allies believes that genuine change can only comes with persistent challenges to what is not good and jettisoning bad leaders to replace them with good ones who have primacy of the people’s interest in their hearts. No turning back despite the mounting obstacles!!!
Forward ever, but backward never in the path for democratic transformation through conducting the general elections and referenda in the Sudan without any exceptions, boycotts or delays even if many attempts are made by SPLM-DC phobiatics to obstruct the move.
Dr. James Okuk is a University of Nairobi PhD graduate of Political Philosophy reachable at: email@example.com