The Resolution of the Conflict in South Sudan
Presentation by the NDM to the IGAD Pre-Forum Consultations Meeting
8 October 2017.
1- South Sudan is in acute political, social, economic and humanitarian crisis that threatens its viability, and which may result in its disintegration on ethnic lines and eventual collapse. Famine is a reality, more than two million South Sudanese are now refugees in neighbouring countries and about the same figure are internally displaced, one-third of the population is food insecure and the government continues to commit gruesome atrocities including rape and extra-judicial executions. Elements of genocide as defined by Article II of the Genocide Convention are in place in South Sudan as testified by the UN envoy on the prevention of genocide and echoed by the UK Secretary of State for International Development, among others. There is no let-up in the fighting as the government continues to mount its military offensive despite its bogus declaration of a unilateral ceasefire.
2- The root cause of the crisis is basically a leadership failure. The ruling party, the SPLM, and President Salva Kiir in particular, have failed the country and landed it in a ruthless civil war that threatens to turn into genocide while the world is watching. Since 2005, the SPLM under Salva Kiir have been running the Government of Southern Sudan/Republic of South Sudan with a sense of entitlement and exclusion of other South Sudanese in having a say on how the affairs of their own country are being run leading to massive corruption within the Party and government. The SPLM lacks a people-centred programme for governing a country. The people of South Sudan got disillusioned with their government and all the hopes they thought the independence would bring got dashed.
3- However, it was the power struggle within the leadership of the SPLM that finally boiled over into a civil war in December 2013 which resulted in the killing of tens of thousands of civilians and forcing millions of the larger population of the South Sudanese people out of their homes becoming displaced inside the country and refugees in the neighbouring countries. With instability, hunger and disease stepped in and need arose for urgent humanitarian assistance. Today the government itself announced the incidence of famine in some parts of the country.
4- From the outset, it is absolutely essential to understand why the war took place in December 2003. The oft repeated characterization that the war was ignited by political reasons but turned tribal is not accurate. The skirmishes in Juba in the Giada (army barracks) would have been easily contained. The war did take place due to the reaction of the White Army from the Nuer nationality to the targeted killings and massacre of their kith and kin in Juba by Dinka armed men associated with Salva Kiir Mayardit. Therefore, the war was tribal from the word go. Retaliation killings of the Dinka took place in Greater Upper Nile region (Jonglei, Unity and Upper Nile States). The Nuer White Army also committed ethnic targeting of the Shilluk in Malakal and its environs between December 2013 and April 2014 killing thousands of them and abducting more than 100 girls whose fate is not known to date. They justified their action that it was a reaction to the SPLA Major General Johnson Olony’s support to the government and fighting on its side against them!
5- Therefore, the true characterization of the war waged by the Nuer White Army in December 2013 and thereafter is that it was a war to avenge their kith and kin that were massacred in Juba. If there were no ethnic targeting of the Nuer nationality in Juba, the White Army would not have been involved in the fighting and the troubles in Juba, like similar incidents before that did not target the whole ethnic group, would have ended there and then. Dr Riek Machar and his group were running for their lives and took a train that had already left the station.
6- The two warring parties committed heinous atrocities, war crimes and crimes against humanity including arbitrary killings, rape and targeting children and the elderly. These facts are clearly documented in the Final Report of the AU Commission of Enquiry on South Sudan released in October 2014. The families of the victims are calling for justice.
II- The August 2015 Peace Agreement and its Collapse
1- Attempts to resolve the problem peacefully culminated in the signing of Agreement on the Resolution of the Conflict in the Republic of South Sudan (ARCISS). This was mediated by the IGAD countries with the support of Troika, EU, UN, AU, China and other countries and institutions. The two warring parties signed the agreement reluctantly.
2- President Salva Kiir has shown disdain to the implementation of the Agreement. He violated the agreement several times while the Guarantors of the agreement acquiesced. For instance, he divided the country into 28 Bantustans in the name of States against the Agreement’s and the Constitution’s ten States, he refused to authorize the cantonment of troops in Equatoria and Bahr El Ghazal, and even in Upper Nile which he had agreed to initially nothing was done. Finally, he abrogated ARCISS when he dislodged his First Vice President militarily and installed a puppet in his place. Today, he continues to unleash war on the entire country. Even Equatoria that was relatively peaceful during the two-year ethnic war, is now up in flames. Most recently, and encouraged by the acquiescence of the Region and the International Community to his violations of the Agreement, he divided the country even further by creating more States in a country that is wallowing in poverty, government officials are not getting their salaries and hospitals lacking basic medicines. This dire political, economic and humanitarian crisis has resulted in the people voting with their feet. Equatoria , especially Central Equatoria, is now almost depopulated.
3- It must be emphasized that the formation of the Transitional Government of National Unity (TGoNU) in April was made possible only by the IGAD ruling in its Communique dated 31 January 2016 and unanimously endorsed by the Joint Monitoring and Evaluation Commission (JMEC) on the 2nd of February 2016 that the creation of 28 states was a violation of ARCISS and froze its operationalization until the TGoNU formed a representative National Boundary Commission to resolve the problem. However, President Salva Kiir did not keep his word on this matter as with other issues related to the implementation of ARCISS. No National Boundary Commission was formed.
4- The basic defect of ARCISS was that it placed the antagonists in charge, possibly with the hope to buy peace. However, it is a proven fact that President Salva Kiir and Dr Riek Machar cannot work together smoothly. None of them is ready to subordinate his own interest to that of the country. Also there is no basis for retaining one and leaving out the other. Thus, the implementation of ARCISS could not go ahead as planned until it was abrogated by the President in July 2016 igniting a fresh round of civil war that now threatens to turn into genocide. President Kiir ran away with all the violations of ARCISS and its eventual abrogation as the IGAD countries, in the series of Summit communiques they were issuing since August, abandoned impartiality and sided with him. Hence, there is no peace agreement on the table to talk of implementation. Impunity in violating the agreement by Salva Kiir is being rewarded encouraging him to mount a massive dry season offensive in the misguided hope that he will win the war and impose his will. This offensive continued even in the rainy season as we have seen around Maiwut and Pagak in eastern Upper Nile State last August.
5- Today, South Sudan is sliding fast into an abyss under an ethnocentric government led by President Salva Kiir and his outfit, the Jieng (Dinka) Council of Elders. Insecurity has spread all over the country, the economy is in tatters, prices soaring on a daily basis and the local currency losing value rapidly. The bulk of the population is facing real hunger. The displacement of the population under the scorched earth brutalities of the government’s security organs continues. For the first time in the decades’ long history of conflict in South Sudan our refugees have exceeded two million creating unnecessary economic, social and political stress and burden to the recipient countries.
6- The responsibility for the current insecurity and the spread of the armed conflict in the country must rightfully be laid at the door of President Salva Kiir. He denied space to the peaceful political opposition and the Press to express themselves freely, abrogated the Peace Agreement and unleashed his security organs on innocent civilians who were just calling for their legitimate rights. It goes without saying that denial of individuals’ rights is a form of violence. President Kiir initiated violence and then unleashed the state security organs, which are ethnically composed, on people whose lands were grabbed by Kiir and handed them to his ethnic group. Thus, he left the aggrieved with no choice but to take up arms in self-defence. It is absolutely cynical and insensitive to turn around to ask the victims to relinquish self-defence. This goes contrary to common sense and the known international norms.
III- The government in Juba lacks legitimacy
1- The current Transitional Government of National Unity (TGoNU) presided over by Salva Kiir Mayardit derived its legitimacy from the Agreement for the Resolution of Conflict in the Republic of South Sudan (ARCISS). For instance, Chapter I of ARCISS stipulates that:
(a)- There shall be a Transitional Government of National Unity (TGoNU) established in South Sudan entrusted with the task of implementing this Agreement. (Article 1.1)
(b)- The incumbent President of the Republic shall serve as President and Executive Head of State for the Transitional Period. (Article 5.1).
2- After the July 2016 hostilities, when the First Vice President was ousted by the armed forces of the President, there was no government of national unity in Juba as it excluded major stakeholders that made it possible to be called as such. Therefore, it no longer satisfied the characteristics of the TGoNU stipulated for in ARCISS.
3- The legal existence of the TGoNU is brought into question by another important fact. ARCISS has never been incorporated into the Constitution as stipulated in its provisions (Article 2 of Chapter VIII). Therefore, the TGoNU has never existed as a legal entity.
4- Furthermore, there has never been an election conducted in the Republic of South Sudan to elect a President. Salva Kiir Mayardit was elected in Sudan in 2010 as President of a regional government in Sudan, the Government of Southern Sudan (GOSS). The 2011 Constitution confirmed him as President of the new Republic up to July 2015. His term was extended in 2015 by a Parliament that had no authority to do so. Hence, that extension in itself was questionable.
5- The government of Salva Kiir Mayardit has engaged in war crimes and crimes against humanity. The Final Report of the AU Commission of Inquiry on South Sudan released on 15 October 2014, concludes that war crimes and crimes against humanity “were committed pursuant to or in furtherance of a State Policy” . The government of the Republic of South Sudan is a signatory to the Geneva Conventions. Hence, the international law can deem it illegitimate for violating major international treaties that prohibit and criminalize such crimes it has been engaged in.
On the basis of the above, it cannot be argued that any change in the structure and leadership of the current government to give way to a new transitional setup is tantamount to changing a legitimate government. The current government in Juba is de facto and not de jure.
Furthermore, one of the pivotal recommendations of the AU Commission of Inquiry referred to above was “that all leading members of the GOSS (President, Vice President, Ministers) in power before the dissolution of the cabinet in July, 2013 shall be barred from participation in the Transitional Executive”. Such a recommendation coming from a commission headed by a former head of state and whose members are from among prominent African luminaries cannot be taken lightly. The IGAD mediators in 2014-2015 did so to their chagrin!
IV- The Way Forward
1- It must be acknowledged that ARCISS as was signed in August 2015 is no longer working and therefore it is necessary to conduct a serious inclusive political dialogue involving all the stakeholders in the country to stop the country from sliding into the abyss. A new political process is called for. This new process must examine critically what went wrong with ARCISS so as to avoid repeating those mistakes and gaps.
2- The failure of ARCISS, and indeed any agreement that is based on power sharing and military dominance, is in that it encourages the dominant parties to use the Transition to continue rivalry in order to secure advantage in the elections that follow the Transition thus distorting the people’s will. Therefore, for a future agreement to have any chance of success, any new political process must remove this element from consideration. That is, power sharing between the belligerents shall never deliver the conducive atmosphere required for the transitional process to function smoothly paving the way for a genuine democratic dispensation after the transitional period.
3- The mandate of the current government in Juba is derived from ARCISS. It has no other source of legitimacy. Hence, with the demise of ARCISS, it cannot claim the right to continue in office as part of the expected agreement.
4- On the basis of the above, it is our considered opinion that the High Level Revitalization Forum is tasked with convening an inclusive roundtable of all the stakeholders outside South Sudan to discuss and agree on how to stop the current war. It must be open to discuss the current status of ARCISS and ready to consider all proposals as some provisions of ARCISS have been rendered either obsolete or non-implementable by the developments that took place since July 2016 which created new realities.
5- We firmly believe that stopping the war and bringing about sustainable peace demand creating a level field among the political elites to give the country a fair chance to transit into real peace. The Achilles’ heel of ARCISS was in the governance and security arrangements as stipulated in Chapters I and II which experience has shown not to work. It is necessary, therefore, that the following arrangements regarding government and security dispensation be agreed upon and put in place in the Transitional Period. This is in summary form; the details will be shared when the High Level Revitalization Forum is convened.
(a)- A Transitional Executive, both on the national and State levels, shall be composed of technocrats selected by the stakeholders on the basis of agreed criteria. Those taking part in this government will not seek election in the general elections following the end of their term of office. The term of office of this Government shall be about 2-3 years.
(b)- Immediate cantonment of all the warring parties in specified locations outside the towns. A Regional Protection Force (RPF) is to be deployed in the three towns of Juba, Wau and Malakal and any other to provide security in those towns and create a conducive atmosphere for political discourse during the Transition.
(c)- The role of the National Security Service was not considered in ARCISS. This was a grave omission. Given its partisan nature (the Directors of the two branches are declared members of the SPLM) and the role it played in the July 2016 conflict and thereafter, the new process must review its mandate. It has been our position all along that the National Security Service role should be to collect information, analyse it and pass the necessary recommendation to the concerned authorities for action. This was what was agreed upon in the CPA and enshrined in the South Sudan Constitution.
(d)- Creation of a new national army and other security organs through equal representation of the counties as they stood on 9 July 2005 (or the old colonial districts as o 1/1/1956). The body to do so shall include regional and UN representatives with requisite expertise. This process should be completed as soon as possible so that the new national army and security organs are in place before the general elections are conducted.
(e)- A National Constitutional Conference (NCC) shall be convened by the
Transitional Government during the first six (6) months through its term to discuss and agree on the parameters of a permanent constitution for the country. All political parties and civil society organizations shall take part in the process. The new permanent Constitution shall be promulgated through a referendum well before the general elections.
6- We do not believe that an appointed Parliament has a role to play in a Transition. A transition is by definition a construct not mandated by the people, rather it is meant to prepare level ground for such mandate to be possible. Our experience both in Sudan (CPA) and South Sudan (ARCISS) has shown that most of the important issues in running the country are settled by the parties to the agreement outside Parliament and taken to it for formal blessing. The other transitions in Sudan in 1964 and 1985 were more poignant in that respect, no role for a Parliament was even discussed. Parliament in a transition is hamstrung in its role to legislate and also to oversee the work of the executive. Therefore, it will be an unnecessary expense at a time when we need every pound to relieve the hungry South Sudanese and rehabilitate them. Furthermore, the current Parliament was complicit in the excesses of the Salva Kiir’s regime and cannot be absolved of responsibility by commission or omission.
7- ARCISS as signed on the 17th and 26th of August 2015 shall form the basis of discussion and review of the other matters related to the mandate of the Transitional Government and the role of all the stakeholders and the regional and international partners in implementing the Transitional Programme agreed upon.
8- There should be iron clad guarantees put in place this time around to ensure that the violation of the new agreement would not be cost-free. JMEC stood helpless as ARCISS was going down the drain. It did not speak out clearly on the violations let alone recommending remedial or punitive measures against the offender.
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