Position of Jieng Council of Elders on the IGAD-plus Proposed Compromise Agreement
THE POSITION OF THE JCE ON THE IGAD-PLUS PROPOSED COMPROMISE AGREEMENT
The Republic of South Sudan
Jieng Council of Elders (JCE)
Friday, July 31st, 2015
August 4, 2015 (SSB) — The Jieng Council of Elders, as a body that is greatly concerned about suffering of the people of South Sudan and yearns for an expeditious end to the on-going violent conflict in the country, wishes to express publicly it views on the latest Intergovernmental Authority on Developments (IGAD)-Plus “Proposed Compromise Agreement on the Resolution of the Conflict in the Republic of South Sudan”. Though the proposal is an attempt to resolve the on-going conflict in the country, it is our opinion that the proposal inherently creates more serious problems than it solves. It actually makes the achievement of peace very difficult for four reasons. First, the proposed agreement is intrinsically a strategy for the international actors to take-over the country. It is essentially born out of the recommendations of the African Union Commission Report, which recommended foreign personalities to run the country during the transitional period. Second, the proposal creates a more divisive future for the country that is likely to breed a much bitter war, considering the proposal to handover Upper Nile region to the opposition.
Thirdly, it does not address in a meaningful way the root causes of the conflict, though it may succeed in temporary halting the fighting, it does not entirely provide any guarantees to stop its resumption in the very near future. Lastly, the agreement is crafted particularly in favor of Riek Machar and helps him achieve his coup objectives, albeit diplomatically. The agreement makes Riek Machar co-president, not just a vice president and the agreement essentially renders the sitting president powerless and more ceremonial. This glaring appeasement of hell-bend coup plotters actually provides incentives for violent usurpation of power.
To understand this better, it is important to unpack the problematic articles as away to unveil the truth about this faulty proposal. Chapter-one, Article 1.6 of this proposal outlines the power sharing ratios in the Transitional Government of National Unity (TGoNU) as follows: In the executive body, the government gets 53%, the SPLM-IO has 33%, while the SPLM FDs and other political parties get 7%, and 7 % respectively. Whereas power-sharing ratios in the conflict affected States of Jonglei, Unity and Upper Nile as reflected in Article 15.4 breaks down as follows: The government is apportioned 33%; SPLM/A-IO 53%; SPLM Leaders (Former Detainees) 7%; and other Political Parties with 7 %.
Obviously, there is no major objection on the rationale to share power between the warring parties as a way to end the conflict. The question that arises, ison what basis should this be done? What is raising questions more on this proposal is the justification for giving the opposition 53% in the war affected states? Does this suggest that the opposition controls 53% of the territory in the Upper Nile region? Or is this based on the assumption that since the rebellion is predominantly Nuer-led, that the Nuer ethnic group makes 53% of the total population in each of the three states? Is this also assuming that the whole Nuer ethnic community has joined the rebellion? Moreover, if power is being shared on the basis of ethnic ratios, how could the Nuer opposition get 33% of the state power when the whole ethnic group constitutes about 15% of the total population in South Sudan?
The proposal clearly lacks any sound basis, as it is devoid of any coherent logic and does nothing more than to fragment the society and threatens to further aggravate an already fractured social fabric. We find it objectionable to extend the power sharing ratios to the states. While the compromise to share the power with the rebels is an undertaking that should not to be talked about disdainfully, some mechanisms of power sharing equation used by the IGAD-PLUS ought to be closely scrutinized, for we may end up inadvertently priming the country for another disastrous self-butchering.
Perhaps the IGAD mediators are fed with slanted information about the population dynamics in the Greater Upper Nile region. Thus, we intend to submit to the whole world demographical facts regarding this strategic region. In terms of the population breakdown in the region’s three states, the 2008 Population Census shows that the Nuer community accounts for 49.5% of the total population in the Upper Nile region, while it constitutes 15% of the total population in the Republic of South Sudan. At the state level, Nuers make up 28.2% in Upper Nile State, 49.5% in Jonglei state and 85% in Unity State.
Through this ethnic demographic prism, it is abundantly clear that the Nuer population alone does not constitute 50% of the total regional population. Therefore, IGAD-Plus’s mediation cannot use this as the basis for granting 53% majority to the rebellion. Second, the Nuer’s collective opinion is split, which makes this agreement an unfair adventure, for it is forcing the rest of South Sudan to share power evenly with a fraction of a subset of the total population. In the case of Unity State for example, it has to be ardently borne in mind that the present governor of Unity State, who is with the government, has the majority following in the state. His followers constitute the bulk of the men fighting the SPLM/A-IO in that state.
Could it be that the decision to give majority power to the rebellion was based on but false believe that majority of the South Sudan’s oil come from the Nuer territories? Assuming that this was the basis on which such decision was made, we want to make it vividly clear to the whole world that majority of the oil; actually 96% of the total oil production currently in South Sudan comes from the Jieng (Dinka) territories. Upper Nile state produces up to 85% of South Sudan’s oil output and it is 100% in a Jieng territory. In Unity State, South Sudan produces roughly 15% of the total oil output, 60% of which is produced in Parieng County; a Jieng territory. When all numbers are stipulated, the oil production in Nuer territory comes to more or less 4% of the total oil output in South Sudan. Hence, IGAD-Plus mediators could not with a straight face justify their decision on this fact.
The mediation might have considered who controls what territory to decide on the fate of the Upper Nile region. Based on the facts on the ground, the opposition controls part of one county, Panyijar in Unity State, which has only 9% of the total population in the state. They control parts of one county in upper Nile, Maiwut, which has a population of roughly 8% of the total population in the state. The opposition seems to have more fortunes in Jonglei where they control Akobo, Uror and Nyirol with 33% of the population. Thus, in terms of territories the parties control, the SPLM-IO could get less than 10% of power in Upper and Unity States and 33% of power in Jonglei State. This agreement therefore unfairly grants the power in the Upper Nile region to the rebellion in disregards for the government control of these areas. This cannot be used as the basis for allocating 53% power to the rebels. This will definitely alienate the present state governments and may end up encouraging another Nuer vs. Nuer war in Unity State and Nuer vs. other ethnic groups in Jonglei and Upper Nile, a scenario that is worth avoiding at all cost.
Therefore, if the IGAD-PLUS is using the information narrated above as the basis to compute the percentages reflected in this current peace proposal, then they have missed the point by a wide margin. Either that the information they used in their arithmetic is awfully slanted, or they simply want to see the current mayhem in our country continuing. Given the aforementioned reasons, we find it appropriate to challenge IGAD and its partners to go back to the drawing board and take a fresh look into the population dynamics in those states.
Although our collective desire for peace is overwhelming, exceptions have to be made if this agreement were to have any remote chance of ushering in a new dawn of sustainable peace in our country. Turning over the whole greater Upper Nile region to Riek Machar is vehemently objected. This agreement is tailor made for Riek Machar and his followers and so this alone is sufficient to warrant opposition to the tenets of the whole agreement and the power sharing ratios in Upper Nile in particular. The proposal actually aggravates people’s growing distrust towards IGAD’s mediation model, which is itself becoming more and more an obstacle to the achievement of peace.
This appeasement scheme, skewed towards SPLM/A-IO, has a potential for igniting more violence in Upper Nile; a region that is already battered by repeated bouts of man-made disasters and persistent cycles of rebellious conflicts. As the base of the nation’s oil wealth, it is imperative to make sure that this region is handled with extra care and great sensitivity so that it is not plunged into any sort of armed anarchy inadvertently.
If this agreement is signed in its present form, we are afraid that it will be a recipe for another disastrous outcome in South Sudan and the greater Upper Nile region in particular. In fact, if such a proposal were to make it through, it would not be surprising to witness the emergence of another rebellion in the region before the implementation of this proposed agreement commenced. This should not be allowed because geopolitically, the greater Upper Nile is a strategic region both for its population and natural wealth; it would be a grave mistake to allow it to descend into uncontrollable chaos. If the greater Upper Nile region is blindly granted this special status, it may later serve as an opportunity for those who want to dismember this country by propping up separatists whose indulgences are not in the best interest of this country.
The other concern with the power sharing ratios regards the SPLM Leaders-Former Detainees (FDs). The IGAD-Plus simply ignores the fact that the SPLM FDs have reached an agreement with the government and they have returned to the country. It defeats any logic to insist on keeping a stakeholder that has ceased to exist. This is either a sheer ignorance on the part of IGAD-Plus, or it is simply part of the broader scheme by the international community to set in motion further fragmentation of this country. The fact is that the SPLM Leaders FDs are now part of the government and so if IGAD wants to continue to recognize this group, it has to be acknowledged as part of the government. Therefore, whatever percentage share of power given to this group should go to the government automatically.
The second problematic provision in this proposed agreement regards the powers, functions and responsibilities to be exercised by the President, the First Vice President and the Vice President through consultation and mutual agreement. The proposal on the presidency is consistent with the African Union Commission recommendations on collegial presidency. The main difference is that this proposal envisions the TGoNU as an institution that is grounded on the premise of collegial decision-making and continuous consultation between the President, the First Vice President and the Vice President, in order to ensure effective governance during the transitional period.
The most serious issue with this proposal regarding the collegial presidency is that it may lead to paralysis within the presidency and essentially diffuse the presidential powers into three power centers. This has a potential to create conflict, especially when there is no one person that has the final decision-making powers. The whole of the transitional period may end without any meaningful progress on all the issues, which would really be a recipe for violence. This is exactly the excuse the Joint Monitoring and Evaluation Commission (JMEC), essentially a parallel foreign-led leadership structure, needs to make and impose decisions on the presidency, a serious challenge to the sovereignty of the Republic of South Sudan. Since the implementation powers of this agreement are given to Riek Machar, it is potentially possible that Riek Machar and the JMEC could bypass and sideline the president and run a parallel government.
As previously discussed, the proposed agreement gives Riek Machar what he could not achieve through his attempted coup to dislodge the president from power forcefully. Therefore, Riek and Kiir will be co-presidents essentially with equal powers with each having the power to veto the other’s decisions. There is enough evidence regarding the fact that the two leaders had eight years of bad working relationship. One would have to assume that the relationship would be ten times far worst than it had been previously given the level of animosity and distrust resulting from this conflict. The proposal does nothing to recognize this acrimonious situation; instead, the proposal seems bent on adding highly combustible fuel to the situation.
Given the state of affairs just described, one can simply deduce the fact that the presidency is destined in this agreement to decent into anarchic paralysis magnified primarily by the acrimony between the two leaders and reinforce by the convoluted mechanics of its working proposed in this agreement. In other words, with each having equal powers, the duel between the two is set to impede the normal running of the government as people will squabble even over trivial matters and with the apparent loathing, neither would be willing to compromise. While there are three persons in the presidency, the third person has essentially no role or powers to break the deadlock, because the vice president has no meaningful contribution in the decision-making process. This begs the question as to what is the value added of having a position that would not be a factor at all in leadership and decision-making?
In chapter one, Article 10.4, the Council of Ministers, an entity that is elevated above the presidency, in some circumstances, is given the power to break the deadlocks in the presidency. However, the agreement also made sure that this planned anarchy is extended to the Council of Ministers, because decisions on substantive and controversial matters are reached by two-thirds majority (67%), which is impossible to achieve in a bitterly divided cabinet and presidency considering the power ratios. Not only does this submission lead to perpetual conflict within the presidency and the cabinet, it makes the process of decision-making time consuming and conflict ridden and devalues the presidency in terms of its responsibilities and authority. This is consistent with the broader scheme to make the process of making critical decisions difficult between the parties and give the JMEC the power to impose decisions on the parties and it essentially makes the government weak and unproductive.
The more serious question regards the logic behind the relegation and diffusion of the powers of an elected president when the position was never legitimately contested in an election. Unlike Zimbabwe and Kenya, where President Mugabe and Morgan Tsvangirai, President Kibaki and Raila Odinga had to share power because elections outcomes were contested, the situation in South Sudan is completely different. What we had in South Sudan was an attempted coup and so the sitting president is being force to share power with someone who tried to take his position by force. This proposal does not do justice to the people of South Sudan. It is entirely premised on rewarding violent usurpation of power, a clear antithesis to the democratic ideals that are supposedly espoused by IGAD and its international supporters. It reflects really bad on those who preach the tenets of democracy and sends a wrong signal to those who harbor violent tendencies to rise to power.
In Article 10.5, the way the ministers and ministries are selected is crafted like a lottery. The proposal provides a formula for how ministries are going to be selected. The parties will choose ministries in rounds. For example, the government will choose the first ministry and the opposition chooses the second ministry and so forth until all the 30 ministries are selected according to the power sharing ratios. There are eight ministries that will have deputy ministers and so each party will nominate a deputy minister for each ministry that it has selected. This is essentially unworkable. Parties should be able to negotiate a better formula, not this lottery-like scheme.
Regarding the proposed expansion of the National Legislative Assembly to 400 members, the proposal makes no attempt to provide clarity and defense for this. Though one can infer from the draft agreement the objective as a measure to make the SPLM-IO the second largest party in the parliament, there is nothing convincing about adding more people to an institution that remains diversely balanced and swollen in terms of the sheer numbers. We are of the opinion that the expansion of the legislature is unjustifiable given that it was an elected legislature and expanding it to accommodate members of the opposition would be unfair to the constituencies that do not have members in the opposition. The expansion of the legislature would not only be unfair, but it could create over representation of the Nuer community in the government, a situation that is likely to provoke other communities to embrace the use of violence to get over-represented; much of which is the aim of this agreement. Extending this appeasement scheme to people’s house is clearly overdoing it.
In an attempt to align the agreement to the Transitional Constitution, Article 13 of the draft document proposes Pre-Transition Period National Constitutional Amendment Committee (NCAC). The draft agreement instructs that upon signing this Agreement, the IGAD-led Mediation in consultation with the Parties and other stakeholders shall initiate the formation of a representative NCAC, with the mandate to complete the tasks necessary to prepare for the Transition Period and form the TGoNU. This simply infringes on the work of the national legislature, which is sovereign and therefore on that ground,NCAC is unnecessary. The amendments can be initiated in the executive and the parliament would have to approve it as it is normally done.
Furthermore, Chapter 6 article 5.5 states,“the Transitional National Assembly shall be transformed into a Constituent Assembly on the 1st date of the 27th month of the Transition for purposes of adopting the Permanent Constitution after which it shall be dissolved preceding the Elections”. No explanation is provided to justify this transformation of the legislature. The transitional assembly could adopt the constitution without being transformed into the constituency assembly, provided that it is done in conformity with the constitution.
Coming to the question of permanent ceasefire, which is contained in Chapter 2 of this proposed agreement, the proposal is consistent with the recommendations of the African Union Commission on the security sector reforms and the broader scheme to turn the country over to a coalition of international actors. The objective of this section is not only aimed at transforming the security sector, is actually aimed at a complete destruction of the SPLA structures and rebuilding a new army on a clean slate. Although some of the SPLA forces may be part of the new security apparatus, the scheme will not recognize existing structures. The idea is that the current SPLA structure has a divided loyalty and it is inseparable from the SPLM. Since it is not easy to destroy the SPLM for all the apparent reasons, one way you could achieve this is by cutting historical links to the SPLA by rebuilding a whole new military outfit. The international actors are citing both Sierra Leon and Liberian experiences as possible models for rebuilding the army. This of course is a non-negotiable proposition and it should be rejected in earnest. Though military restructuring and reforms are certainly necessary, they should not be aimed at erasing the historical legacy of the SPLA.
The same proposal prescribed the demilitarization of the national capital in Article 5 of chapter 2. Claiming that “the National Capital, Juba”, shall be designated as a Special Arrangement Area (SAA) and shall be demilitarized 25kms in radius from the center of the city and the demarcation of the area shall be agreed upon during the PCTSA workshop in terms of latitude / longitude”. This means that the SPLA in Juba would have to leave the town except for a company of Presidential Guards with four platoons, which comes to 260 soldiers to protect the president and 195 soldiers to protect the First Vice President. A third-party security unit comprising of forces from UNMISS, IGAD and the AU will provide security in Juba and to the government officials including the president. This protection force will not only provide security in the work places, but also in residences.
Obviously, this is perhaps the most telling article about the thinly veiled international disposition to establish a trusteeship in the Republic of South Sudan. Juba, the capital city is the sovereign seat of the national government; to render it devoid of the national army is tantamount to a white coup. The proposal simply confirms the intention of the international community to takeover the country. There is no country in the world that remains sovereign whose national capital and its leadership is under the protection of foreign forces. This is essentially a non-starter and on sovereignty grounds alone, it should be rejected without hesitation. The proposed Transitional Third Party Security Unit (TTPSU) referenced in Article 6 of the same chapter should also be rejected on the basis that it is an occupation force.
Another issue of serious concern is the proposed Strategic Defense and Security Review (SDSR) contained in chapter 2 Article 7. The SDSR proposed mandate is to “undertake a comprehensive assessment of the requirements of South Sudan’s national army within one hundred and twenty (120) days from the signing of this Agreement to inform the formulation of the country’s Defense and Security policies that shall subsequently lead to the overall Security Sector Transformation (SST) process, including the future command, function, size, composition and budget of South Sudan’s national army and security forces, and DDR requirements”. This proposal goes together with the broader objective of the proposed agreement, which is the foreign interventionin the country. In order to achieve this seizure of our sovereignty, it has to be assumed that there is no national army and therefore a new national army has to be created from the scratch. This assumption is of course sinister on the part of those proposing it and on that basis; such a proposal should not be entertained.
Article 8 tackles the Unification of Forces. Again, this proposition assumes that there are two equal forces that should be unified and it talks about forces in Juba and the Greater Upper Nile region being given the priority. The issue with this article is that there are no two equal forces. There is the SPLA, the national army and there are rebel forces, some of which defected from the national army. Therefore, there should be no unification of forces; instead, there should be reintegration of rebel forces into the national army. This proposal conforms to the same notion that there is no national army and that a new one would have to be built.
In Chapter 3 Article 2, a Special Reconstruction Fund (SRF) is recommended. There is no major objection to the creation of such fund, but Article 6.2.5 of the same chapter stipulates that the proportion of the natural resource wealth of South Sudan shared with the States and counties shall be increased and that the terms of the increment and formulae to be applied shall be determined in the permanent constitution. Such arrangements should not be included in the constitution as they are subject to many changing conditions. Perhaps a separate law should govern this, but not the constitution.
In chapter 4, the draft agreement proposes the creation of Economic and Financial Management Authority (EFMA). There is no concern with the establishment of such a body, but the advisory body, which is essentially a foreign body made up of the World Bank, International Monetary Fund, African Development Bank, Common Market for Eastern and Southern Africa (COMESA), PTA Bank, UN-Economic Commission for Africa, United Nations Development Program, and three (3) major donor representatives is certainly a concern. The sheer number of institutions that make up the advisory body is puzzling. Why do you have to bring all these world institutions into an advisory board? The motive may be that these institutions would be ready to takeover the financial institutions if the EFMA does not work or does its job efficiently.
Chapter 5, Article 3 recommends the establishment of Hybrid Court for South Sudan (HCSS) whose mandate would be to try suspected cases of genocide, war crimes and crimes against humanity under international law. This court, which according to the proposal should be established through an MOU between the Transitional Government of National Unity (TGoNU), African Union and United Nations will see its staff and judges jointly appointed by the Chairperson of AU and UN General Secretary. The proposal specifies that HCSS shall have primacy over any national courts of RSS. Perhaps, this institution is proposed under the assumption that South Sudan’s legal institutions do not have the capacity or the will to carry out justice in the country. The scheme of course fits with the international ploy to intervene in the country. This provision will ensure that those who may be obstacle to the international intervention could be drag to court under the pretext that they have committed war crimes.
Given this reality, it is preferable for the people of South Sudan to deal with justice and accountability matters within their own customary systems as well as statutory mechanisms. Doing this, we believe will speed up the process of healing, reconciliation and justice. An international court such as the one proposed may not enjoy the cooperation of the state and the citizens and therefore would delay justice and it is most likely to delay the achievement of peace and reconciliation in the country. Further, the proposal talks about the court having jurisdiction in respect to matters of genocide and other crimes committed since December 2013. Since when has IGAD determined genocide as having been committed in South Sudan? This is telling enough in a sense that there is a serious degree of prejudice and bias against South Sudan and this is sufficient to warrant objection to the creation of such an international body.
Chapter 7 of this proposal recommends the establishment of Joint Monitoring and Evaluation Commission (JMEC). While we see the importance of having a body that can monitor and evaluate the progress in terms of the implementation of the peace agreement, we are simply stunt by the proposed powers of the Joint Monitoring and Evaluation Commission (JMEC). According to IGAD, JMEC will be tasked with overseeing the implementation of the agreement, a mandate that essentially guarantees this body “the power to take corrective action in the event of non-compliance with the terms of the agreement”. Moreover, the proposal intends to make JMEC more than just a body that is entrusted to monitor and evaluate the performance and progress with respect to the peace agreement but rather a powerful governance institution that “shall oversee institutions created or operating during the Transition”. To ensure that JMEC fulfills its mandate, “all transitional institutions” are expected to regularly report to it.
JMEC itself draws its power from the UN Security Council (UNSC) and the African Union Peace and Security Council. This provision alone is enough for one to draw a conclusion about the fact that this country is going to be run through JMEC using a series of UNSC resolutions. Although a prominent African personality will chair this body, appointed by the IGAD Assembly of Heads of State and Government in consultation with IGAD-PLUS partners, it is the Security Council that shall enforce its mandate. This is consistent with the recommendations of the African Union Commission proposal that recommends the creation of High Level Oversight Panel.This body will have overbearing powers that would clearly undercut the legitimacy of the government and will certainly infringe on our sovereignty and so it should be rejected. The body should be supported in as far as it can monitor and verify violations and refer its findings to the principals of the parties to the agreement for resolution.
The chapter of this proposed agreement that raises serious questions is chapter 8. It suggests that the Agreement shall be fully incorporated into the Transitional Constitution of South Sudan, 2011 (TCoSS), in the event that the provisions of the TCoSS conflicts with the terms of this Agreement, the terms of this Agreement shall prevail. Additionally, this Agreement shall take precedence over any national legislation, and in the event that the provisions of national legislation conflict with the terms of this Agreement, this Agreement shall prevail. This, in our view, is the undoing of the legitimacy of the state and government and it completes the transfer of power from South Sudan government to the transitional authority, which is in the body of JMEC. Hence, this provision should be rejected.
In conclusion, while we are committed to the return of peace and stability to South Sudan, the latest IGAD-Plus proposal does absolutely nothing to expedite and resolve in any meaningful way the current crisis; it actually delays and exacerbates the crisis. Moreover, it seems very clear that those who are hell bent to usurp the sovereignty and independence of the Republic of South Sudan are trying their best to seriously undermine genuine efforts to end this senseless war. We are now convinced that the IGAD-led mediation has failed; we advise the parties to seek alternative mechanisms.
Signed on behalf of Jieng Council of Elders (JCE):
Justice Ambrose Riny Thiik
Hon. Joshua Dau Diu
Hon. Aldo Ajou Deng
Hon. Maker Thiong Maal
Hon. Daniel Dhieu Matuet
Hon. Lewis Anei Kuendit
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