EACJ to rule on challenge to presidential power to appoint lawmakers

The East African Court of Justice will deliver its ruling on November 27 in a case challenging a provision of South Sudan’s election law that allows the president-elect to appoint 17 members of the National Legislative Assembly.

The case was filed by South Sudanese advocate Wani Santino Jada against the Attorney General of the Republic of South Sudan.

In a letter dated September 15 and addressed to the South Sudan Judiciary, the East African Court of Justice notified authorities of the scheduled delivery of the ruling.

Jada is challenging Section 60(4) of the National Elections Act 2012, as amended in 2023.

The provision allows the president-elect to appoint five percent of the National Legislative Assembly, equivalent to 17 lawmakers.

Jada argues that the provision is inconsistent with South Sudan’s Transitional Constitution, which provides for legislators to be elected by the people.

According to the application, the appointment power conflicts with constitutional provisions requiring legislators to be elected.“The application argues that the appointment power conflicts with provisions requiring legislators to be elected,” the filing states.

The applicant further argues that the provision violates Article 56(1)(a) of the Transitional Constitution, which vests legislative authority in representatives chosen by the people.

“It says the measure violates Article 56(1)(a) of the constitution, which vests legislative authority in representatives chosen by the people,” the application states.

The case also challenges the effect of presidential appointments on the independence of Parliament and the separation of powers.

It raises broader questions about the legitimacy of South Sudan’s legislature, which has not been elected since independence in 2011 and has had its mandate repeatedly extended through peace agreements.

The applicant argues that laws passed by an unelected or partially appointed parliament raise questions about democratic legitimacy and constitutional authority.

“The applicant contends that laws passed by an unelected or partially appointed parliament lack democratic legitimacy and constitutional authority,” the filing states.

The government has reportedly defended the provision as a mechanism to ensure representation for minority groups, trade unions and persons with disabilities.

However, the applicant argues that Section 60(4) does not specifically identify those groups and instead gives the president broad discretionary powers to make the appointments.

The case also invokes South Sudan’s obligations under the Treaty establishing the East African Community, particularly provisions relating to democracy, the rule of law and good governance.

The matter is registered as Application Number 17 of 2023, arising from Reference Number 37 of 2023, before the First Instance Division of the East African Court of Justice in Arusha, Tanzania.

The court says the ruling will be delivered at 9:30 a.m. on November 27 by a five-judge panel.

A ruling in the case could have implications for South Sudan’s electoral and legislative framework, depending on the court’s findings and any subsequent legal or legislative action.

South Sudan is scheduled to hold general elections in December 2026, after several postponements since independence in 2011.

The elections have been delayed amid political disputes, insecurity and disagreements over the implementation of peace agreements.