Addis Ababa Talks: DRAFT II FRAMEWORK FOR POLITICAL AND SECURITY NEGOTIATIONS TOWARDS RESOLUTION OF THE CRISIS IN SOUTH SUDAN

SINGLE NEGOTIATING TEXT ARISING FROM DRAFT II FRAMEWORK FOR POLITICAL AND SECURITY NEGOTIATIONS TOWARDS RESOLUTION OF THE CRISIS IN SOUTH SUDAN

PREAMBLE

Concerned about the grave crisis facing South Sudan that has continued since 15th December 2013, consuming the country and the region as a whole and resulting in senseless loss of life, mass displacement of populations and wanton destruction of property;

Mindful that the crisis in South Sudan cannot be permitted to continue amid the looming threat of full scale war and subsequent nationwide war-induced famine;

Cognizant that the crisis in South Sudan must be addressed expeditiously to stop the killings, end the war and restore peace and stability in the country;

Recognizing that there are African solutions for African problems drawn from a rich African experience of resolving crises of this nature;

Acknowledging the ongoing concerted efforts led by the political leadership of the IGAD Region who have thus far convened four Extraordinary Summits between December 2013 and June 2014, and initiated the South Sudan Dialogue for National Reconciliation and Healing mediated by the three IGAD Special Envoys;

Further acknowledging the extensive consultations carried out by the Special Envoys throughout the region and beyond;

Recalling the achievements made thus far by the Parties to the conflict, the signing of the Cessation of Hostilities Agreement on 23rd January 2014, the establishment of the Monitoring and Verification Mechanism and its operationalization, the deployment of the Protection Force for the IGAD Monitors under the mandate of UNMISS, and the inclusive participation of other South Sudan stakeholders in the political dialogue;

Applauding the critical support provided by IGAD Partners and friends of South Sudan to the peace process in its entirety and in efforts towards the resolution of the conflict;

Now, therefore, the Stakeholders Agree that it is time to resolve the crisis in South Sudan without further delay as follows:

1. AGREED PRINCIPLES

To find a comprehensive solution that will address the political, security economic and social deterioration of South Sudan and replace war not just with peace, but also with human security, social, political and economic justice, which respects the fundamental human and political rights of all the South Sudanese people.
1.1 The following Documents shall form the basis of the Terms of Reference (TOR) for the Political Negotiations:

a) IGAD Agenda Phase II Session III of 28th April 2014; Agenda of 30th July 2014 adopted by the stakeholders on 9th August 2014;

b) Agreement to Resolve the Crisis in South Sudan, Addis Ababa, 9th May 2014 endorsed and further elaborated by the 26th Extraordinary Session of the IGAD Assembly of Heads of State and Government on the Situation in South Sudan on 10th June 2014;

c) Agreement on Recommitment to Humanitarian Matters in the Cessation of Hostilities Agreement between the Government of the Republic of South Sudan (GRSS) and the Sudan People’s Liberation Movement/Army (In Opposition) (SPLM/A-IO) on 6th May 2014.

1.2 Establish a Transitional Government of National Unity (TGONU) that will offer the best chance for the people of South Sudan to take the country forward;

1.3 Negotiate a transitional agenda, mandate and powers of a TGONU that will oversee government functions during the Transitional Period and implement critical reforms that will be negotiated through the peace process;

1.4 Ensure the inclusion of all South Sudanese Stakeholders in the peace process, and the negotiation of a TGONU, in order to ensure broad ownership of the agreed outcomes; Stakeholders include: the two direct negotiators (the GRSS and SPLM/A (In Opposition), and others such as the SPLM leaders (former detainees), political stakeholders, civil society, and faith-based leaders;

1.5 Agree on participation of all South Sudanese Stakeholders, in the negotiations on transitional governance, the permanent constitution, and any other items that concern the political future of the country and reconciliation of South Sudanese communities;

1.6 Agree that the TGONU shall oversee a permanent constitution process, and guide the country to new elections.

2. THE TRANSITION PROCESS

In order to end the conflict and to secure a peaceful and prosperous future for all the people of South Sudan and in order to collaborate in the task of governing the country, the Stakeholders hereby agree to:

2.1 TRANSITIONAL GOVERNANCE ARRANGEMENTS

(a) Establishment of the Transitional Government of National Unity (TGoNU)

I. The people of South Sudan, in their social and political diversity, shall participate in the institutions of the TGONU at all levels, which shall respect the need for representation and inclusiveness in the staffing and management of its agencies, organs, departments and ministries without prejudice to merit;

II. The nature and the structure of the TGONU shall be equitably constituted with their mandates defined by this Agreement;

III. The different pillars of government (Executive, Legislature and Judiciary) as reformulated for the Transitional Period, shall operate independently and ensure the principle of checks and balances is upheld.

(b) The Mandate of TGoNU
(c) Leadership of the TGoNU
(d) Structure and composition of TGoNU

I. The Presidency
II. The Cabinet – Composition, allocation of portfolios, appointment, replacement and removal procedures

(e) Functions and Powers of TGoNU
(f) Decision making mechanism in the TGoNU
(g) Dispute resolution mechanism
(h) The seat of the TGoNU shall be in Juba
(i) The National Legislature comprising the National Assembly and the Council of States
(j) Other independent commissions and institutions such as the Judicial Service Commission, Civil Service Commission, Anti-Corruption Commission, etc.
(k) The National Judiciary
(l) State, local governments and State legislatures

I. If the transitional period extends beyond the current mandate of elected bodies and officials, their mandate shall be automatically extended to cover the full transitional period until the elections.

II. In the areas affected by conflict in Unity, Upper Nile and Jonglei States, the Presidency in consultations with the citizens of the said states, shall establish the State governments and local authorities.

(m) Duration of the TGoNU.

There shall be a Pre-Transitional Period whose commencement and duration shall be X months commencing with the signing of the peace agreement;
a) The Peace Agreement negotiated, and the necessary amendments to the Transitional Constitution, shall be presented to the National Legislature for adoption within X weeks from the conclusion of the Agreement. The Legislature will not introduce any amendments to the text.

b) The amended Transitional Constitution shall not be amended or repealed during the Transitional Period except by way of special procedures and qualified majorities in order that the provisions of the Peace Agreement are protected, as provided for in the Transitional Constitution, and shall form the basis upon which South Sudan will be governed during the Transitional Period.

c) The Stakeholders shall refrain from any form of unilateral revocation or abrogation of the Peace Agreement.

d) The amended Transitional Constitution shall be the supreme law of the land. It shall regulate the relations and allocate the powers and functions between the different levels and pillars of government.

e) South Sudan shall work towards sound ideological and political path by undertaking the renewal and re-launching of the Sudan People’s Liberation Movement (SPLM) both as a political party and as a vehicle for addressing leadership crisis within the Party.

2.2 TRANSITIONAL PERIOD:

a) The TGONU will commence at the end of the Pre-Transitional Period and shall last for X years;

b) During the Transitional Period, critical institutional reforms in the Security Sector, Civil Service, Judiciary, Economic and Financial Sector, Service Delivery, Reconstruction and Development, Media, Natural Resource Sector, Physical Infrastructure, Foreign Policy, Commissions, National Security Agencies, Police, Prisons, Wildlife Services, Civil Defence, National Elections Commission, National Bureau of Statistics, and Social Services Sector, and review of the Political Parties Act shall be carried out as stipulated in the Agreement;

c) The TGONU shall determine whether to conduct a census for the purpose of elections or use available statistics to carry out elections;

d) During the Transitional Period, national elections shall be organized by the TGONU. The TGONU shall agree upon:

I. The system of national and state-level elections;
II. The sequence and timeframe for each phase of national and state-level elections;
III. The process to reform the composition of the electoral management bodies, the political parties registrar and their mandates; and relevant legislation pertaining to these bodies;
IV. The process for redressing electoral complaints and disputes;
V. The mechanisms for ensuring public education and consultations throughout the electoral process.
VI. The details of the electoral process which shall include provisions to ensure an inclusive and transparent process.

3. TRANSITIONAL SECURITY ARRANGEMENTS AND PERMANENT CEASEFIRE

Upon signing of the Agreement the Parties commit to total separation of the two warring parties, the assembly and/or cantonment of all military forces at pre-designated sites, to enable personnel, weapons and equipment accountability, screening, reorganization and/or disarmament and demobilization. In view of this, the Parties Agree to:
3.1 Immediate cessation of all hostilities and observance of a permanent ceasefire that is independently monitored and verified;

3.2 Negotiate the location of assembly / cantonment sites, population centers that are to be demilitarized, and a withdrawal timeline, which will form part of a peace agreement;

· Movement begins immediately upon signing the Peace Agreement / Permanent Ceasefire and should be complete in X days. The results of the Strategic Defence and Security Review will dictate the length of time forces remain in assembly / cantonment areas.

3.3 Upon signing of the agreement the stakeholders agree to the complete withdrawal of foreign and allied forces from —- to —– in accordance with the provisions of the Cessation of Hostilities Agreement;

· The withdrawal to start within X days from —- to —–, and to be completed within X days

3.4 Upon signing of the agreement the Stakeholders shall, within X days after the adoption of the Permanent Agreement, establish a Ceasefire Management Mechanism that consists of two elements:

a. The Ceasefire Commission responsible for the day-to-day operational management of the ceasefire and security arrangements process through the supervision of the Monitoring and Verification Teams and;

b. The Joint Commission responsible for addressing political issues that might impede progress as well as disputes that cannot be resolved by the Ceasefire Commission. The stakeholders shall agree to the composition of these structures;

c. The mandate of the IGAD Monitoring and Verification Mechanism (MVM) shall be amended within the same timeframe to reflect the Peace Agreement/Permanent Ceasefire provisions.

3.5 The TGoNU commits to forming a committee to conduct a holistic Strategic Defence and Security Review (SDSR), to be complete within X months after signing the Peace Agreement. The TGoNU further commits that the results of the Defence and Security Review will provide detailed policies for subsequent transitional security arrangements, and security sector reform, including security sector management and oversight, security force structures and composition, demobilization, and amalgamation/integration.

3.6 The stakeholders shall consider the following parameters as the basis for the terms of reference for the SDSR committee:

The Aim of the Strategic Defence and Security Review:

The aim of SDSR in South Sudan is to lay the ground for a significant change in how the country formulates and delivers its defence and security policy. The SDSR seeks to do this through a comprehensive assessment to clarify the requirements of South Sudan’s national army and its relationship with other security institutions and actors.

Guiding Principles:

The following principles underpin a successful SDSR:

– National ownership, supported by regional/international assistance, resources, and academia;

– Conducted in a comprehensive, logical and rational manner, with each phase building on the previous one;

– Inclusive, consulting with individuals and organizations from within and outside TGoNU;

– Open and transparent, with the outcome of each phase communicated as widely as possible.

Phases:

Phase 1: Firstly, a strategic security assessment that examines the military and non-military security challenges that affect RSS currently and in the future; Secondly, a security policy framework, clarifying the responsibilities of different bodies and agencies in responding to these security challenges, including the management and oversight of the security sector; Thirdly, a revised defence policy, identifying the specific role and missions of the national army and outlining a vision for its modernization.

Phase 2: An analysis of the operational capabilities that South Sudan’s national army will require to meet the challenges identified in Phase 1, and the supporting systems and structures that are needed to ensure effective utilization of these capabilities. The key output should be a range of strategic models, specifying the level of human resources, equipment, and training needed to develop the military to respond to defence and security priorities, and the associated financial implications.

Phase 3: The findings of Phase 2 are submitted to the political leadership for evaluation. Their task is to decide which model, or combination of models, best meets the needs of the nation, along with the level of expenditure required. The findings of the review should then be published in a White Paper on Defence and Security, approved firstly by the executive and then by the legislative assembly.

Phase 4: The Ministries of Security, Defence and Interior produce annual plans to turn RSS’ vision of defence and security into practical, costed programmes.

3.7 During the transitional period the TGONU commits to equitable composition / participation in the key national security management and oversight bodies, including a National Security Council, Parliamentary Security Committee and Military Command Council. Modalities of appointments to these bodies shall be as provided in the Peace Agreement.

3.8 Implementation shall be informed by the findings of the Defence and Security Review, which will guide the composition and terms of reference of the bodies for the remainder of the transitional period.

4. RESOURCE, ECONOMIC AND FINANCIAL MANAGEMENT

In order to promote sound economic and financial management and systems, the transitional government will be enabled to collect revenue efficiently, spend responsibly and be transparently accountable to its citizens. This is necessary for promoting legitimacy and addressing unanswered grievances at the root of the conflict as one of the mechanisms for consolidating statehood. In view of this, stakeholders agree to:

4.1 A long-term EFM reform programme as an agenda for the Transitional Government and public sector management to be implemented with the existing institutional and legal architecture;

4.2 The reform should help to establish effective, transparent and accountable management of oil and non-oil revenue, expenditure including public procurement and payroll, granting of public concessions, public borrowing and debt management compliant with existing laws;

4.3 Clear lines of authority, public disclosure requirements, and reporting channels among the Ministry of Finance and Economic Planning, the Ministry of Petroleum, the Central Bank, the Presidency, line Ministries, and the National Legislature, as laid out by the laws should be adhered to;

4.4 The independence of the Audit Chamber is to be guaranteed, its operations empowered to eliminate any political interference, with the National Legislature playing its oversight role in the fight against corruption;

4.5 Enable the Anti-Corruption Commission to fully perform its functions (of protecting public property, investigating and prosecuting cases of corruption, combating administrative malpractices in public institutions, demanding that all persons holding public offices make confidential formal declarations of their income, assets and wealth) without prejudice to the powers of the Judiciary;

4.6 To bar and punish all citizens, including political leaders, who are found to have condoned or engaged in corrupt practices, from public office in accordance with the Penal Code;

4.7 To develop a code of Ethics and Integrity for public officials;

4.8 Establish a high level, competent and effective oversight mechanism that controls incoming revenues, their allocation in broad terms through the budget and the effective spending for the planned purposes. The oversight mechanism should be made up of all key stakeholders, including representatives of civil society and from the international community;

4.9 To make sound financial choices during the transitional period, the oversight mechanism should foresee provision of technical and advisory resource commitments to economic governance by the international community.

5. TRANSITIONAL JUSTICE, RECONCILIATION AND HEALING

Cognizant that the people of South Sudan yearn for peace, justice, reconciliation and healing, the Stakeholders agree to respect and uphold the following rights set out in the Bill of Rights of the South Sudan Transitional Constitution, 2011 and in UN General Assembly resolution 60/147[1] as elaborated upon in the United Nations’ Principles on Impunity[2]:
a) Right to truth[3].
b) Right to access to justice.[4]
c) Right to reparation and rehabilitation[5].
d) Right to ‘never again’ or the guarantees of non-repetition.[6]

5.1 The Stakeholders agree to establish processes and mechanisms for accountability and reconciliation that shall include, but will not be limited to:

a) A National Commission for Truth, Reconciliation and Healing, which may be hybrid in composition, to spearhead efforts to address the legacy of conflict in South Sudan through:

i. establishing an accurate and impartial historical record of human rights violations, which shall include the identification of victims and perpetrators;
ii. recording the experiences of victims;
iii. investigating the causes of conflict and making recommendations to prevent the repetition of conflict;
iv. facilitating local and national reconciliation and healing.

b) A judicial body to investigate and prosecute individuals bearing the greatest responsibility for violations of international humanitarian law, and/ or applicable South Sudanese law, committed since 15 December 2013. Such a body shall:

i. be established in cooperation with regional and international authorities particularly cooperate with the African Union Commission of Inquiry for South Sudan;

ii. be of a hybrid nature involving both local and foreign investigators, prosecutors and judges;

iii. prioritize and fast-track the investigation and prosecution of those most responsible for violations of this peace agreement that constitute crimes under international humanitarian law, and/ or South Sudanese law;

iv. not be impeded or constrained by any statutes of limitations, immunities or amnesties in respect of the prosecution of serious violations of international humanitarian law;

v. be required to leave a permanent legacy on the South Sudanese criminal justice system through training, mentoring and capacity building of local practitioners.

c) A Reparations Commission to assess the needs of victims, and develop and implement reparation programmes, including urgent reparations, consistent with the UN Basic Principles and Guidelines on the Right to Reparation. [7] The government shall be required to fund the reparations programmes and to seek assistance from the international community in respect of any shortfalls.

d) Other bodies or processes to advance the rights referred to under this section, including statutory, customary and traditional mechanisms.

5.2 The Stakeholders agree that national legislation must be enacted within X months of the signing of this Agreement to ­establish the bodies referred to in sub-clauses 5.1 (a), (b) and (c); and to operationalize such bodies within X months of the promulgation of such legislation.

5.3 The Stakeholders agree that the specific mandates of the bodies created in terms of this clause shall be guided by consultations with the affected communities and shall:

a) be independent and autonomous;
b) be fair and impartial;
c) employ members and staff who are suitably qualified, not implicated in the subject matter, broadly representative of society; and observe gender parity;
d) have the necessary investigative and other powers to complete their mandate; and that secrecy laws shall not apply to their investigations;
e) protect the dignity, safety and wellbeing of victims and witnesses;

6. HUMANITARIAN ISSUES

The Stakeholders recognize the destructive impact of the war, acknowledge the massive displacement of the South Sudanese people, and are aware of the disastrous economic, political and social consequences of the conflict for South Sudan and the region; and realize the devastation, loss of life and instability the conflict has caused to South Sudan. The stakeholders hereby agree to address the following:
a) Humanitarian issues resulting from the conflict;

b) Ensure unhindered humanitarian access and relief intervention to all conflict-affected areas;

c) Institute programmes of relief, repatriation, resettlement, reintegration and rehabilitation of IDPs and returnees. In particular, to provide special programmes for war/conflict affected persons (children, orphans, women, widows, war wounded, etc., including reconstruction of war-affected areas.

7. PARAMETERS FOR A PERMANENT CONSTITUTION

To give effect to the Principles set out in Part 1, the Stakeholders hereby agree on the following parameters to guide a people-driven permanent constitution-making process. The on-going Constitutional Review Process shall be reinvigorated to ensure inclusiveness and representation.
7.1 The stakeholders shall decide:

(a) A process for producing an initial draft constitution including mechanisms for determining the leadership and other membership and decision making processes of the body that produces the initial draft;

(b) The role of the TGoNU in the constitution-making process;

(c) The composition, leadership, decision making processes and functions of the national body that will deliberate upon and endorse the draft permanent constitution;

(d) The timeframe for each phase of the constitution making process and mechanisms for ensuring that the time frame is maintained and the process is completed before the end of the Transitional Period;

(e) The method of promulgation of the Permanent Constitution; and

(f) Key issues to be debated and decided upon in the constitution making process including the values and principles underpinning the Republic, structure of the state (national government, states and local government), the system of government (presidential/ parliamentary), good governance (ethics, integrity, public financial management, independent institutions, etc.), and security (civilian control).

(g) The mechanisms for ensuring public education and consultations throughout the constitution-making process. A law shall set out the details of the constitution making process and shall include provisions securing an inclusive process, transparency, and consensus building.

8. IMPLEMENTATION MECHANISMS

a) Matrix and joint implementation mechanism;
b) Activities, action plan, timeframe, etc.;
c) Witnesses
d) Monitoring, Evaluation and Follow up Mechanisms for the Peace Agreement

I. Independent mechanisms to monitor the implementation of the Peace Agreement shall be established. Such mechanisms will comprise members of the stakeholders, members from the IGAD region and from the international community;
II. The criteria for the selection of such a body and by what process appointments and removals shall be agreed;
III. The body shall be responsible to manage and resolve conflicts over implementation or interpretation of the agreement.
IV. Individuals, groups and parties to the conflict shall be accountable for their actions. In this regard, those found responsible for atrocities and other crimes being investigated by AU Commission of Inquiry for South Sudan, shall be removed or barred from the Interim Government.
V. The Stakeholders agree to establish a Code of Conduct binding on all parties to this Agreement, within 30 days of the signing of the said Agreement. The Monitoring, Evaluation and Follow-Up Mechanism will monitor compliance with the Code of Conduct, and report to the oversight mechanisms established in the Agreement and to the Guarantors.

9. GUARANTORS OF THE AGREEMENT

IGAD, in collaboration with the International Community, shall guarantee the implementation of this Agreement by the Parties to the conflict in South Sudan.

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