Five Contentious Issues in the South Sudan Peace Process

By Roger Alfred Yoron Modi, Kampala, Uganda

Saturday, July 28, 2018 (PW) — On Wednesday, South Sudan’s government, the SPLM-IO, Other Political Parties OPP and SSUM, except the South Sudan Opposition Alliance and FDs, initialed an Agreement on Outstanding Issues of Governance in the Sudanese capital Khartoum, as part of the Igad-led High-Level Revitalization Forum HLRF of the 2015 Agreement on the Resolution of the Conflict in South Sudan ARCSS.

The Agreement provides that Salva Kiir shall continue as South Sudan’s President and the Chairman of SPLM/A-IO Dr Riek Machar shall assume the position of the First Vice President. The Agreement further provides that during the Transitional Period there shall be four Vice Presidents of the Republic of South Sudan who shall be nominated by Incumbent TGoNU; SSOA; the Incumbent TGoNU; the FD respectively.

Among others, the Agreement provides that the Council of Ministers shall comprise of 35 ministers and shall be allocated: the Incumbent TGoNU: 20 Ministers. SPLM/A-IO: 09Ministers. SSOA: 03 Ministers. FDs: 02 Ministers. OPP: 0l Minister. According to the Agreement, the parties are “Cognizant that a federal system of government is a popular demand of the people of the Republic of South Sudan and of the need for the Revitalized TGoNU to reflect this demand by way of devolution of more powers and resources to lower levels of government.”

Article 6.11 of the Agreement provides that “The Parties reaffirm their agreement in the ARCSS that a federal and democratic system of governance that reflects the character of the Republic of South Sudan and ensures unity in diversity be enacted during the permanent constitution making process.”

The final Agreement is expected to be formally signed on August 5 in Khartoum, reportedly, in a ceremony to be attended by the IGAD heads of state and government.

SSOA and FDs Reject Agreement

Among other reasons discussed below, the South Sudan Opposition Alliance (SSOA) and the Former Detainees (FDs) rejected the agreement (proposal,) with the former citing “inconsistency in the responsibility sharing formulae,” while the latter stated that there is “serious lack of consistency in allocating power-sharing ratios at all levels of governance.”

However, both SSOA and the FDs admitted the progress achieved in the Talks in Khartoum and reiterated their commitment to the process.

On his part, while calling upon the parties who have rejected to join the Agreement, South Sudan Government spokesperson Michael Makuei Lueth said: “those who did not sign the agreement are insignificant and we will continue without them if they do not join us.” Without elaborating, Makuei added “In fact, there have been a lot of efforts to discredit the government of Sudan. And we stood hard with the government of Sudan, supporting it so they can make this great achievement.”  The South Sudan’s government spokesman further called on the US and the International Community to support the agreement and its implementation.

The Sudanese foreign minister and chief mediator Al-Dierdiry Ahmed on the other hand reportedly said they would continue their efforts to bring the holdout groups to sign the agreement.

John Prendergast, the Founding Director of Rights advocacy group the Enough Project and Co-Founder of The Sentry welcomed the initialling of the Agreement saying “The narrowing of the gaps between the primary warring parties in the South Sudanese conflict is welcome news. However, an inclusive peace is the only peace that will ever be sustainable.”

Enough Project Deputy Director of Policy Brian Adeba argued on the need to avoid “concentration of power in few hands to avoid a return of war.”

“The contentious issue of state borders requires the utmost independence and impartiality in its management to deter political machinations that favour one side” Adeba said.

On Sunday, in a statement on the South Sudan Peace Process, the United States said “a narrow agreement between elites will not solve the problems plaguing South Sudan” adding that “In fact, such an agreement may sow the seeds of another cycle of conflict.”

“South Sudan’s political leaders, including President Kiir and SPLM-IO leader Machar, have not demonstrated the leadership required to bring genuine peace and accountable governance to South Sudan.  We remain skeptical that they can oversee a peaceful and timely transition to democracy and good governance.  The United States will not be a guarantor of any agreement, and will not fund—or call for additional United Nations resources to support—the transitional government, in the absence of a sustained, demonstrated commitment to peace, inclusivity, financial accountability and good governance” the statement by Trump admiration partly read.

With the above introduction, below are the Five Contentious Issues on the South Sudan Peace Process together with some observations and recommendations:  

1-    The Council of States

The Agreement provides that The Transitional National Legislature (TNL) shall consist of the Transitional National Legislative Assembly (TNLA) and the Council of States.

It provides for expansion and reconstitution of the TNLA to up-to 550 members in a power ratio of 332 to the current TGoNU, 128 to SPLM/A-IO, 50 to SSOA, 30 to OPP and 10 to FDs.

However, the Agreement has made no explicit provision for continuity of the current Council of States. Also, it has made no explicit provision for dissolution of the current Council of States.

Article 3.4 of the Agreement stipulates that “Upon issuing the final report of the IBC (Independent Boundaries Commission) the Council of States shall be reconstituted as shall be recommended by the IBC. However, if the IBC failed to issue its final report the Council of States shall be reconstituted pursuant to the outcome of the referendum and as stated in the TCRSS (Transitional Constitution of the Republic of South Sudan).”

Article 3.5 of the Agreement further provides that “The Speaker of the Council of States shall be from SPLM-IO, Deputy Speaker from TGoNU, who shall be a woman, and Deputy Speaker from SSOA. For the purpose of regional inclusivity required in a body representing the States, each of the Speaker and Deputy Speakers shall come from a different region.”

The Agreement has fallen short on providing for power-sharing percentages in the Council of States between the parties. The reconstitution of the Council of States provided for in Article 3.4 per the recommendation of the IBC and the outcome of the stipulated would-be referendum are silent on power-sharing percentages between the parties in the Council of States.

Also, the Agreement has not given a mandate to the IBC and the Referendum Commission on Number and Boundaries of States (RCNBS) to allocate a power-sharing ratios to the parties in the Council of States. And the phrase in Article 3.4 that “…if the IBC failed to issue its final report the Council of States shall be reconstituted pursuant to the outcome of the referendum and as stated in the TCRSS” is problematic since the TCRSS in Article 58 provides that, “The Council of States shall consist of: (a) all South Sudanese who were representatives in the Council of States of the Republic of Sudan, by virtue of their membership in that Council; and (b) twenty representatives appointed by the President” which have already been implemented since 2011.

To avoid a stalemate over states during implementation, all the above ambiguities should be rectified by including provisions in the Agreement on the how the parties will share power in the reconstituted Council of States, regardless of the recommendation of the IBC and the RCNBS. If the parties shall not be sharing power in the Council of States, save for that positions provided for in Article 3.5, an explicit provision saying so should as well be included in the Agreement to ensure clarity and smooth implementation.

However, I recommend that a balanced power-sharing ratio on the membership of the Council of States between the incumbent TGoNU and the (opposition) parties be included in the Agreement. This is mainly for two reasons:

First, the Council of States is a very powerful institution, which per Article 59 of TCRSS, is, inter alia, competent to “(a) initiate legislation on the decentralized system of government and other issues of interest to the states and pass such legislation with two-thirds majority of all representatives,

(b) issue resolutions and directives that may guide all levels of government…

(c) oversee national reconstruction, development and equitable service delivery in the states;

(d) monitor the repatriation, relief, resettlement, rehabilitation, reintegration of returnees and internally displaced persons, and reconstruction of disaster and conflict affected areas;

(e) request statements from Governors and national Ministers concerned regarding effective implementation of the decentralized system and devolution of powers and any other issues related to the states;

(f) legislate for the promotion of culture of peace, reconciliation and communal harmony among all the people of the states;

(g) approve changes in state names, capital-towns and boundaries…”

Secondly, all the members of the current Council of States were never elected by the people of South Sudan to the current Council States.

The current Council of States membership is made up of South Sudanese who were representatives in the Council of States of the Republic of Sudan before South Sudan’s independence, plus other members appointed by the President. In general, all the members assumed their positions in the Council of States through Article 58 of the Constitution (appointments or transfers from Sudan Council of States), not a direct mandate (vote) from the people of South Sudan to the current Council of States. This explains why they are more loyal to the President than to the people of South Sudan. This is also why there should be a balanced power sharing in the Council of States in the ongoing (Proposal) Agreement between the government and the parties. That would make the Council of States efficient in delivering their mandate, especially on matters related to reforms in ARCSS that will need their role.

2-    The Controversial Number of States

The Agreement provides that within two weeks of the signing of the Revitalized ARCSS, the IGAD Executive Secretariat, taking into account the decision of the 55th Extra- Ordinary Session of the IGAD Council of Ministers held in Addis Ababa, Ethiopia, January 30-31, 2016, shall appoint an Independent Boundaries Commission (IBC) for the Republic of South Sudan “to consider the number of States of the Republic of South Sudan, their boundaries, the composition and restructuring of the Council of States and to make recommendations on the same.”

The IBC, according to the Agreement, shall consist of fifteen (15) members “with the necessary skills and expertise,” five (5) members to be appointed by TGoNU, Five (5) members to be appointed by opposition groups: two (2) from SPLM/A-IO, one (1) from SSOA, one (1) from FDs, one (1) from OPP and five (5) “highly experienced members” to be appointed by C5 states (South Africa, Nigeria, Tanzania, Algeria and Chad).

The Agreement further provides that the IBC shall be chaired by one of its non-South Sudanese members “who shall be of recognized standing and integrity and who should have had occupied a senior judicial, executive or administrative position in his/her home country.”

Article 4.11 of the Agreement provides that “the Parties agree to abide by the recommendations of the IBC, and hereby authorize the IGAD Executive Secretariat to enshrine the same in the Revitalized ARCSS as an addendum. The Parties accept to implement the recommendations in full at the beginning of the Transitional Period.”

The IBC, the Agreement stipulates, shall complete its work within a maximum of ninety (90) days that shall not be extendable.

Articles 4.13; 4.14; and 4.15 of the Agreement respectively provide that:

“In the unlikely event of the IBC failing to make its final report before the end of its term, the IBC shall be automatically transformed on the 90th day of its term into Referendum Commission on Number and Boundaries of States (RCNBS) of the Republic of South Sudan.

“The RCNBS shall work under the direct supervision and support of the African Union and the IGAD, and shall conduct the referendum before the end of the agreed eight (8) months Pre-Transitional Period.

“The referendum shall be conducted on the number and boundaries of States of the Republic of South Sudan; taking account of the positions advanced by Parties. The question or set of questions that shall be posed in the referendum shall be the same for the entire country unless it is decided in the RCNBS that each State shall have different question or set of questions more understandable to the people.”

The FDs, in their press statement on the (Proposed) Agreement on Outstanding Issues of Governance, observed that “while quoting the decision of the 55th Extra-Ordinary Session of the IGAD Council of Ministers January 2016 the proposal has proceeded to ignore the substance of the decision in totality. Instead it has gone to reaffirm an illegality by maintaining the 32 States during the Transitional Period.”

The statement signed by Pa’gan Amum Okiech on behalf of the FDs argued that “The idea of holding a referendum within five (5) months before the end of the Pre-Transitional Period is a ploy to entrench the 32 States, as it is not feasible to conduct a meaningful referendum within this time frame. During this period of time only the current TGoNU that will be in charge of conducting the referendum including all matters related to it such as matters not amenable to ‘yes’ or ‘no’ options. How can a referendum be conducted in a situation when it is one Party to the conflict that will be in power and controls the state including security, registration, producing of voting materials? There will be no conducive atmosphere and sufficient political space for other political parties to campaign and propagate their view on the pros and cons of the 32-state arrangement, among others.”

“To begin with, the idea of referendum has nothing to do with the issue of the 32 states and the decision of the IGAD Council of Ministers referred to earlier. The 32 States which were imposed in contravention of Articles 1.6, 15.2 and 15.3 of Chapter I of the Agreement on the Resolution of the Conflict in the Republic of South Sudan (ARCSS), is an illegality and a violation of ARCSS and the Transitional Constitution of the Republic of South Sudan, (2011). It cannot be allowed to stand in a revitalized Agreement. So we reject it,” the statement further added.

“If the idea of setting up a commission is not a ploy to maintain the 32 states, it will be better to apply the original decision of the 55th Extra-Ordinary Session of the IGAD Council of Ministers in letter and spirit. This should mean setting up an Inclusive Boundaries Commission to discuss and resolve the matter within one month. The default position, in the event of failure to agree, is reverting to the 10 states.”

Indeed the decision of the 55th Extra- Ordinary Session of the IGAD Council of Ministers which Article 4.1 of the (Proposed) Agreement referred to on the appointment of an IBC recognized that the creation on then 28 states was “inconsistent with the terms of ARCSS” and urged the Parties “…in the absence of agreement on the creation of new states, to suspend further action on implementing the operationalization of new states until an inclusive, participatory National Boundary Commission comprising all Parties to ARCSS reviews proposed states and their boundaries, and that this review process occur, for a period of up to one month.”

The decision of the IGAD Council of Ministers further indicated to the parties that “in the event there are outstanding disputes at the end of the boundary commission review process, the Parties should revert to the provisions of the Agreement.”

But a lot has changed on the ground since that 2016 decision of the 55th Extra- Ordinary Session of the IGAD Council of Ministers. On one hand, IGAD continues to recognize the incumbent TGoNU, and by extension, the parties constituting the TGoNU.

On the other hand, the TGoNU moved on and increased the states from 28 to 32, presumably with full agreement of the parties taking part in the TGoNU, something which they could argue to be (partly) pursuant to the decision of the 55th Extra- Ordinary Session of the IGAD Council of Ministers itself, especially the point which talked about “agreement on the creation of new states.”

But indeed, the rest of the exiled or excluded ARCSS parties have the right to protest since those who remained behind did not represent them as at the time of ARCSS signing in 2015.

Now, what should be the solution to the issue of the States? We already know the states increment is a violation of ARCSS and many of the States lack competent institutions (infrastructure) plus it is economically difficult to run many States effectively. We know our people had demanded more counties to the former ten States.

However, now, many of our innocent and mainly uninformed population are already celebrating the increased States thinking power and resources have been brought closer to them without understanding the implications involved. Taking away the States from them by reverting to the 10 States may have huge implications with a possibility of creating another conflict.

On the other hand, many others also feel the new states are bad and have tempered with their boundaries and peaceful coexistence.

Also, of course, a credible Referendum is not possible within the given period.

Nevertheless, Article 4.9 of the (Proposed) Agreement on Outstanding Issues of Governance provides that “The IBC shall strive to adopt its final report (on the number of States of the Republic of South Sudan, their boundaries, the composition and restructuring of the Council of States and to make recommendations on the same) by consensus. If consensus is not achieved, the IBC shall adopt its final report by a decision taken by two thirds of all its members that shall include at least seven (7) of its South Sudanese members.”

This is where the parties opposed to the States should clearly identify the grievances of the communities affected and together with the incumbent TGoNU, without (political) bias, reach a solution, preferably by adding more states or merging some states or counties where necessary.

This is an avenue all the parties (the incumbent TGoNU included) should use very well by demonstrating leadership to come up with a settlement on the states and related issues, thereby avoiding talks about a referendum on the same. It is possible. It requires courage and honesty.

3-    The Problem is not merely Agreeing on the Number of States

In November 2015 after ARCSS was signed, it was widely reported over the media that South Sudanese Parliament amended the TCRSS, relaxing the number of states stipulated in the Constitution and gave the President powers to create more states, appoint governors, etc.

“Article 162 (1) which fixed the number of states to ten was amended so that ‘the President may for the purpose of efficient discharge of functions of the government, divide the territory of the Republic of South Sudan into states and other areas in accordance with procedures prescribed by law or provisions of such law as may be enacted by the concerned House of Legislature.’” Sudan Tribune reported.

“Article 164 (1) which defined the current states legislative assemblies, the manner of their composition, was amended to add that other members will be appointed by the president during interim period.”

On this also, The Nation Mirror reported that the “issue of 28 states also attracted criticism as it was passed by the National Legislative Assembly.  Sveral MPs walked out of parliament accusing the Speaker of bias. They also said that parliament passed the Creation Order illegally as it lacked quorum.”

In December 2015, Radio Tamazuj reported that the Council of States “ratified the Constitutional amendments on the establishment of 28 states.”

For all this time, the opposition and others only talk about reaching an agreement with the government on the number of the states for the purposes of the transitional period.

However, in reality, all should focus on much more than just an agreement on States number. This is because the government may reach an agreement with them (the opposition, parties) on the states today or at any time as per the Igad-led ARCSS process but the President could later still divide the Country in to more or fewer States, citing the controversial “Constitutional Amendment” or the Establishment Order approved by the Council of States. That could happen especially when ARCSS expires before a democratic Permanent Constitution is enacted with clearly defined States number, withdrawing the powers said to have been given to the President to divide the Country into States.

One option is to challenge the “Constitutional Amendment” and the Establishment Order before the Courts in South Sudan but experience shows that it would be difficult, if not impossible, to get a just ruling on the matter since the Judiciary is still not Independent from the Executive in several ways.

Hence, the best is for all the parties to get a balanced power sharing in the Council of States through the ongoing (Proposed) Agreement on Outstanding Issues of Governance on the ARCSS revitalization since it is the Council that shall have powers to approve or conduct reforms on the issues of states and also stop the same from being centralized to the office of the President.

4-    South Sudanese should reject the former three Provinces (Regions) system 

A suggestion to return South Sudan to the former three regions (Bahr el Ghazal, Equatoria and Upper Nile) system came out officially for the first time last month in the Proposal unveiled in Khartoum which provided that “In the unlikely event of the IBC failing to make its recommendations before the end of the Pre-Transitional Period, the Republic of South Sudan shall have as regions the old three provinces, as per their boundaries of January 1, 1956. This solution shall be adopted on temporary basis until the number and boundaries of the States are agreed.”

This provision (proposal) was overwhelmingly rejected hence it has since then slowly disappeared.

As a matter of fact, there is no good reason to return South Sudan to the former three regions (provinces) system. That system has no base in the Constitution of South Sudan, with regards to structures of government, how they will be run and which body (institution, region) shall have what powers to do what, where and how.

That system could also complicate matters further given our communities are still highly militarized, they have several unresolved disputes over boundaries, reconciliation among them is yet to take place and we still lack competent institutions to settle disputes peacefully.

The few politicians still pushing for a return to those former three regions are mostly those who have lost touch with their people on the ground due to corruption and lack of service delivery. Those politicians hope once the system is created, they would find seats through appointments in those regional bodies since elections shall not be taking place soon hence they intend to expand the government at the centre in the name of regional governments– in addition, or contrary to the states.

The demand of the people of South Sudan is devolution of more powers and resources to the states and lower levels of government, not centralizing the government again in form of the three former regions which actually will further make it harder for South Sudanese people to integrate as one Country.

Some states were created after repeated conflicts among themselves and bringing them again under a region with the same people they fought until they got their own states could not be anything less than creating more conflicts. Unity within and among those former regions could be created in the future on social and cultural and other forms, not politics as it is neither possible nor good for the Country to base its politics on the former three regions.

Therefore, let the incumbent TGoNU and the rest of the parties agree on an inclusive, just and reasonable way forward on how to agree on the number of states. It would be ideal if they could use the way forward provided for in the (Proposed) Agreement on Outstanding Issues of Governance without politicizing it and/or resorting to the Referendum.

South Sudanese want to develop their states whichever just way they are demarcated or allocated. The government and the opposition should simply resolve the grievances of communities and states, counties, on boundaries and unfairly allocated states but not create a new system that will further complicate the situation.

5-    Power-Sharing in the States and Local Government

In Article 5.1 of the Agreement on Outstanding Issues of Governance, the parties agreed that “the responsibility sharing ratio at State and Local government levels shall be agreed by the parties before the signing of the Revitalized ARCSS”

The Position of the Incumbent TGoNU is that they retain 65% and the Oppositions take 35%.

The Opposition Parties, on the other hand, want 49% for themselves and 51% for the Incumbent TGoNU.

The Mediation has proposed 55% for the Incumbent TGoNU and 45% for the Opposition Parties (SPLM-IO 27%, SSOA 10% and OPP 8%)

The Agreement further provides that “The FDs shall have three State Ministers in States of their choice that shall be deducted from the opposition ratio.”

On this, the Incumbent TGoNU and all the parties should be able to negotiate in good faith, make the necessary compromises and bring a comprehensive peace to the people of South Sudan.

Roger Alfred Yoron Modi, a South Sudanese journalist, is the former Managing Editor of Juba Monitor Newspaper and former Chief Editor of Bakhita Radio. He can be reached via his email: rogeryoron@gmail.com

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