The Legality of a Revitalized TGONU without Riek Machar’s SPLM-IO Faction

The Legal Status of Establishing a Revitalized Transitional Government of National Unity (R-TGONU) without the Participation of Riek Machar’s SPLM-IO Faction

By Bol Chol Kucdit, Juba, South Sudan

Friday, 26 April 2019 (PW) — It has been observed since last week that one of signatories to R-ARCSS in person of Riek Machar and his SPLM-IO faction requested for the extension of timeline of 12th, May, 2019 for other six months to form the Transitional government of National Unity in South Sudan. This news was received by peace lovers of this country as bad news.

Many people were perplexed by this one step backward approach by Riek Machar again. People thought Riek Machar shall never be the same again given his commitment to come to Juba for official celebration of peace last year at Dr. John Garang Mausoleum. People’s positive thoughts about his commitment were later corroborated by the high level spiritual retreat to Vatican City but all in vain.

No wonder to those who have been eye witnesses to Riek Machar’s war series! Many people who witnessed his volume of war series of 1991, 2013 and 2016 respectively, still held some doubts that South Sudanese should be prepared to watch for his 4th edition of war in 2019 or later date. Pathetic!

However, it is of common knowledge under international and municipal law that peace agreement concluded by parties in internal armed conflict are always violated by any party at will. There is always less attention from international law or domestic legal regime. The begging question for all international law scholars and jurist is, what is the legal nature or status of peace agreement under international and municipal law?

Well, on my personal note, the legal status of peace agreements is there but less effective. Unlike individuals’ or group domestic contractual relationship that is governed by contract law, the peace agreements are governed by both international soft law and municipal supreme law like constitution of the country. The legal nature of peace agreements could partly be international when the external good offices are nominated by regional bodies or UN to witness the signing of peace accord by both parties.

These external good offices shall also act as Guarantors to the signed peace. In this regard, there is no clear mechanism established internationally to sue any party who violates the peace in international court of justice or Regional Courts. The normal practice suggests that the party who breaches the peace agreement always meets sanction from Regional bodies or UN through resolutions which are soft laws by nature. They are not enforceable before any court of law.

On the other hand at municipal or domestic level, peace agreements are legally effective once they are transposed or incorporated into existing national constitution. There is always a provision in the peace agreement which states that the provisions of peace agreement shall prevail in the event of their conflict with provisions of existing constitution.

This provokes a serious debate as to the effectiveness of this principle since many constitutions are people’s driven documents and sometimes treated permanent in which they should not be changed by groups of oppositions who want their political interests to be met.

Some scholars put forward the underlying understanding about this superiority of the Peace agreements to existing legal order. They said that peace agreements are concluded for restoration of mutual trust that faded away during the conflict and to reform the old status quo that caused the conflict. So, the peace agreement is made superior to existing legal order to act as a guarantee for the rebels and opposition forces by assuring them that what is concluded in the agreement shall protect them.

Coming to the enforcement before national courts after its incorporation into constitution, it is always difficult if not impossible to take one of the parties who violates peace agreement to national court simply because the commitment to implement peace agreement in letter and spirit is a moral and political will and there is very thin line between politics and the law.

Nobody would actually dare to take the issue to court since the violation is considered political issue rather than legal. There is no any case to that effect if i have not addressed my mind well to some cases of like nature. So, the legal status of peace agreement is still weak at national level!

In conclusion, the current R-ARCSS peace agreement implementation is at cross road. It is of course multilateral peace accord that involved many parties. Given that one of the parties refuses to stick to the time frame of the implementation, he cannot be sued for specific performance since it is not commercial agreement.

In my legal reading, the claim of Riek Machar to extend the time for formation of government is like a reservation of one party to a treaty but in the principle of law of treaties, there is no reservation to multilateral treaties. Reservations are only allowed in bilateral treaties.

In this case, the other parties to R-ARCSS should continue to form the government of national unity and exclude Riek Machar. The Regional bodies and the world should declare him as a negative force!

The author, Bol Chol Kuchdit, is currently a practicing lawyer in Juba, South Sudan, and can reach the author via his email: bol mutaram2 <bolmutaram2@gmail.com>

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