Taking Stock of the R-ARCSS: Lessons to RJMEC and the Rome Peace Process

By Roger Alfred Yoron Modi, Nairobi, Kenya

Friday, August 21, 2020 (PW) — In one of my articles in August 2018, I made some arguments quoting Chapter Seven, Article 3 of the then ARCSS which provided that JMEC “shall be responsible for monitoring and overseeing the implementation of the Agreement and the mandate and tasks of the TGoNU, including the adherence of the Parties to the agreed timelines and implementation schedule. In case of non-implementation of the mandate and tasks of the TGoNU, or other serious deficiencies, the JMEC shall recommend appropriate corrective action to the TGoNU.”

That provision implied that JMEC had powers to, for example, recommend appropriate corrective actions to the TGoNU regarding the validity or lack thereof in the appointment to a post or removal of a position holder under the Agreement (when there is a dispute.) 

Otherwise, why have a monitoring body when it shall not follow such significant processes to ensure that they occur in line with the letter and spirit of the very Agreement establishing them for the purposes of overseeing the Agreement’s implementation and recommending appropriate corrective action in case of non-implementation or other serious deficiencies?

That was the test JMEC faced when in July 2016 debates arose on the question of Machar’s replacement by members of the SPLM-IO in Juba following the resumption of violence.

I further argued that on 24, July 2016 JMEC issued a statement saying: “The Joint Monitoring and Evaluation Commission [JMEC] would like to clarify its stance on the SPLM/iO leadership debate. As stated yesterday, a change to the leadership depends on the Opposition itself and we are not here to speculate on such changes. We do not see any value in speculating when the people and friends of South Sudan are working hard to ensure a return to the implementation of the Peace Agreement.”

I went on to say that that was unnecessary, since according to ARCSS, in my view, JMEC role was never to “speculate” on leadership changes anywhere, be it in the opposition or any other party to the agreement. Thus, legally, in relation to Dr. Machar’s replacement, in my view, JMEC was supposed to ensure that, it was in line with the recommendations of the “Top Leadership” of the SPLM-IO as required by Chapter One, Article 6(4) and Chapter 1 Article 5 (2) (4) of the ARCSS. That ought to be a democratic exercise since the ARCSS sought to transform South Sudan into a Democracy.

So, it was a simple matter that only would require JMEC to monitor and verify that there was the quorum required for the meeting or voting of “the Top Leadership” of the SPLM-IO and that the replacement was in line with ARCSS. This is what they should be doing with all other related provisions of the ARCSS and then recommend appropriate corrective action in case of non-implementation or other serious deficiencies.

On this, in relation to the HLRF, I recommended in one of my recent articles that let each party or entity develop, adopt and deposit their internal Constitution or rules and regulations with JMEC and IGAD. Such internal Constitution or rules and regulations should define the mode of decision making within each party on matters related to the revitalized ARCSS, including their procedure for membership and lose thereof, the procedure for nomination of their representatives to the next TGoNU, TNLA, etc. 

The internal Constitutions or rules and regulations should be separate documents that IGAD or JMEC or HLRF should, on the technical aspect, assist the parties to develop as soon as possible for the purposes of protecting the revitalized ARCSS from violations. The documents should be valid for the purposes of the revitalized ARCSS, regardless of possible change such as the expected reunification of the SPLM. This is very significant as it will ensure accountability, adherence to the revitalized ARCSS. It would also avoid a return to armed conflict or any controversy and possible pulling out by some parties/entities from the revitalized ARCSS over related issues, thereby negatively affecting its implementations.

On the stand JMEC took since July 2016 crisis, it is somehow understandable, given the nature of the violence that erupted and required politics and diplomacy as JMEC leadership itself was notably lacking enough backing from the region and apparently the wider international community.

However, to avoid the occurrence of similar crises during the period of the revitalized TGoNU (ARCSS), strengthening of JMEC mandate and gathering support for their role is absolutely necessary if the revitalized ARCSS under negotiations through the HLRF is intended to be implemented.

This was also called for by Aly Verjee, the JMEC former deputy and subsequently acting chief of staff Testimony in his last year’s testimony before the United States Senate Foreign Relations Subcommittee on Africa and Global Health Policy.

“In the event the Forum produces a meaningful result, reform to the peace agreement’s supreme oversight body, the Joint Monitoring and Evaluation Commission (JMEC), where I served as deputy and subsequently acting chief of staff until my expulsion by the Government of South Sudan in April 2016, must be contemplated,” Verjee told Senates Subcommittee.

“While the principal responsibility for continued conflict and systematic misgovernance rests on the South Sudanese political elites, JMEC has failed to live up to expectations. It has not moved quickly enough to take corrective action at moments of acute crisis, and not held the parties to account when they dishonoured their obligations. There has been insufficient backing for JMEC from the IGAD member states and the African Union when the South Sudanese failed to comply with the terms of the agreement. When JMEC itself came under attack, with its key personnel expelled from the country, JMEC’s regional and international backers did not protest.”

Another issue is, Chapter 7, Article 2 (6) of ARCSS provides that the terms of reference of JMEC shall be endorsed by the IGAD Assembly of Heads of State and Government.

And in that article I argued that there was no such terms of reference available in the public arena to the best of my knowledge. This further made it difficult for the public to hold JMEC to account. JMEC may also be reluctant to live up to expectations as a result of that.

The JMEC Chairman has no security of tenure. ARCSS in Chapter Seven, Article 2 (5) only provides that “JMEC shall be chaired by a prominent African personality appointed by the IGAD Assembly of Heads of State and Government in consultation with IGAD-PLUS Partners, and form Committees to facilitate its activities as deemed necessary. JMEC may select deputy Chairs in accordance with the number of the said Committees.”

Further, during the transitional period, shall a party be able to replace a person serving in the legislature under their ticket? On what grounds? How shall the independence of the legislature be guaranteed when a legislature can be replaced (recalled) through a decision of party that is not necessarily democratic in itself? Shall all legislators in the transitional government of the revitalized ARCSS serve and only be replaced through their voluntary resignation or in case of mental infirmity, physical incapacity or death (God forbid)?

I argued that the revitalized ARCSS be explicit on these matters to ensure its smooth implementation and avoid disagreements and an armed conflict over replacements during the transitional period.

The suggestions I made, if adopted, shall also protect the revitalized ARCSS from abuse and violations by one party, a faction of a party or any conspirator (s) seeking to frustrate implementation of the reforms provided for in the revitalized ARCSS.

I believe that providing for power-sharing percentages alone are not enough, given the experiences of the recent past. 

No party should be allowed to roam around without any written document (reference) such as an internal Constitution and expects to share power in the transitional government. I am of the opinion that let each party or entity develop, adopt and deposit their internal Constitution or rules and regulations with the ARCSS Joint Monitoring and Evaluation Commission JMEC and IGAD. 

The internal Constitution or rules and regulations should define the mode of decision making within each party on matters related to the revitalized ARCSS i.e. their procedure for membership and lose thereof, the procedure for nomination of their representatives to the revitalized transitional government, legislature, State governorship, etc. 

Both at party or entity and alliance/coalition levels it should be ensured that there are internal Constitutions or rules and regulations defining the mode of decision making within each party on matters related to the revitalized ARCSS.

The internal Constitutions or rules and regulations should be separate documents that the mediation (Igad) should on the technical aspect assist the parties to develop as soon as possible for the purposes of protecting the revitalized ARCSS from violations. 

The documents should be separate documents that shall be valid for the purposes of the revitalized ARCSS regardless of any possibility such as the expected reunification of the SPLM, in case there are concerns from the SPLM factions expecting to reunite. 

The internal Constitutions or rules and regulations should as well attach names of members in decision-making positions (organs) within each party/entity and alliance, and define the organs/structures of each party.

In conclusion, all the above are easy for the rest of the parties to achieve. However, as per the last Igad Revised Bridging Proposal, the incumbent Transitional Government TGoNU participating in the Talks comprises of: the former GRSS; the former SPLM/A-IO (led by Gen. Taban Deng); and the Other Political Parties in TGoNU. Given their composition, it may be difficult but not impossible for them to come up with the above significant document (internal Constitution or rules and regulations) for the purposes of the implementation of the revitalized ARCSS.

So, let each party or entity, including the incumbent TGoNU, develop, adopt and deposit their internal Constitution or rules and regulations (on matters of the revitalized ARCSS) with JMEC and IGAD. 

Those are very significant in ensuring accountability and adherence with the revitalized ARCSS and as well as avoid a return to an armed conflict or a possible pulling out by some parties/entities from the revitalized ARCSS during the transitional period over related issues, a move if happens to take place, shall negatively affect implementation of the reforms provided for in the ARCSS.

Lack of provisions in the Agreement guaranteeing the security of tenure and a clear procedure for their removal could be a big source of undue influence and underperformance. This, I argued should be rectified in the then process and JMEC needed to involve more members of the academia in decision-making positions than politicians. 

I wrote that involving respected, competent South Sudanese academics in top positions in JMEC would also strengthen the influence of the body within the Country and counter the arguments that South Sudan’s sovereignty under threat because of the powers given to the peace monitors.

Now given that those recommendations were not all incorporated into the R-ARCSS and as a result, there have been delays in the implementation of the Agreement and lack of consensus on the appointments of representatives of the parties to the RTGoNU bodies, those recommendations could still be incorporated into the Peace process that is supposed to resume in Rome.

I was glad to read this week that the incoming interim chairperson Maj. Gen. Tai Gituai, in his remarks recently said: “I will endeavour to focus on giving strategic direction to the monitoring and evaluation mechanism, in overseeing the implementation of the Agreement within the procedural guidelines and mandate of RJMEC.”

The February 2020 Rome Resolution provides for representation of the R-ARCSS non-signatories (SSOMA) into the Ceasefire Transitional Security Arrangements Monitoring and Verification Mechanism (CTSAMVM) structures, and for joint monitoring of compliance of the parties to the cessation of hostilities agreement.

Now it’s about 6 months since The Rome Resolution was signed, meanwhile, clashes continue, and there’s no sign of honouring that provision and the Cessation of Hostilities.

All I can add today is that: in order to go for comprehensive peace, the above lessons should be incorporated into the Rome Peace process which is going on through Community of Sant’Egidio.

That means building confidence, moving on with the implementation of the R-ARCSS, while expanding it to include those parties that are outside (e.g NAS, SSUF/A, R-SPLM, etc) like the Rome Resolution has provided for.

However, peace is voluntary. And those who are just pushing for war without any reason should be assured that I know a lot about what they are doing to push the war going forward under the pretext that the “root causes” of the conflict have not been addressed.   

South Sudan, Sudan and the Region will be fine.

Peace in the world.

God bless you all.

Roger Alfred Yoron Modi is a South Sudanese journalist and the author of a new book Freedom of Expression and Media Laws in South Sudan, published by Virtue Book Publishers Kenya and available in many bookshops in Juba, the region and on Amazon. He’s a former Editor-in-Chief of Radio Bakhita and former Managing Editor of Juba Monitor Newspaper. He can be reached via his email rogeryoron@gmail.com or twitter handle @RogerYoronModi

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