The contentious issue of 28 states shouldn’t impede the NCAC

By Mabor Maker Dhelbeny

As the parties embark on to the implementation of the “Compromise Peace Agreement”, known as Agreement on the Resolution of Conflict in South Sudan – (ARCISS), by constituting the National Constitutional Amendment Committee (NCAC) which has started earlier last year in order to incorporate this August Agreement on the Resolution of Conflict in South Sudan into the Transitional Constitution 2011 (Amended 2015). Hence, the Constitutional Committee was deliberating over the constitutional draft amendment for some weeks before its came to stalemate, despite the fact that the timeframe given by the Joint Monitoring and Evaluation Mechanisms (JMEC) is very limited.

What was that stalemate and contentious issue? It was the 28 States decreed by His Excellency the President on the 2nd of October, through the presidential ORDER #36/2015 which occurred after the IGAD-Plus Peace Agreement was concluded between the Government and the rebels on the 26th August, 2015. Significantly, the creation of 28 States followed by the subsequent appointment of their Governors cause both ordinary citizens and the laymen to celebrate from the whole month of last year until today. Meanwhile, the South Sudanese Lawyers and other International Experts were thinking of legal consequences that may follow the said order. This is because the August Agreement was signed by both parties on the basis of 10 States and in conformity with Article 162 (1) of TCSS, 2011 before it was amended by the NLA. It therefore becomes a point where members of SPLM – IO in the NCAC raised their eyebrow by accusing the GRSS of violating the Agreement – it’s a stalemate and contentious issue which needs to be resolved. In its third meeting, JMEC resolved that the parties to the ARCISS should solve the problem of 28 States through – “Outside the box”. Some journalists got stunned, thinking that the agreement is reopened for renegotiation by the parties. It seems in my view, some of these journalists or reporters do not know the above phrase. What does this phrase mean? This phrase – “Outside the box”, means thinking differently from a new perspective about the contentious issue.

However, thinking outside the box or thinking beyond the box – needs creative reasoning or thinking that acknowledges the 28 States or rejects the undertaken paradigm to emerge with new idea of revoking the Order #36/2015. This scenario can therefore be achieved by the parties by building consensus and reach ‘compromise’ through dialogue. Furthermore, the process of thinking outside the box could be construed in a pejorative sense but crucial for parsing and executing the decisions reached by the parties. Apparently, thinking outside the box – means the new thought. “When we use this cliché – we can situate ourselves back in the box but in a somewhat at better position”, according to Ira Steven Behr. For this reason, the parties to ARCISS can situate themselves back in the box but in a better position. This demonstrates that the SPLM –IO, FDs and the GRSS are required to look further by trying to think the things in the agreement and beyond so that the ordinary citizens can enjoy the fruits of “Compromise Peace Agreement’. The word – “compromise”, however, needs to be understood by our leaders who are signatories to the agreement. It’s a mechanism used by the mediators – IGAD, TROIKA, UN and AU to bring our conflict to an end. It’s a method of give and take in a good spirit during the negotiation which makes both parties neither the losers nor the winners. According to Sumbye Kapena (2013:56) “…the leader takes the time to listen to the arguments of both parties. The leader then points out both the faults and the good points that each side has. He or she then concludes that since each side has its equal share of the blame, the best thing to do is to tolerate each other’s faults. The leader emphasizes that exhibiting some faults is a characteristic of human nature, and therefore, tolerance is the best stance. In other words, the leader maintains that it is the spirit of give and take (compromise) that ensures continuity of relationships.” Since members of the two Houses of National Legislature has invoke Article 199 of TCRSS, 2011 (amended 2015), as it was initiated by the President in accordance with provision under Article 101 (f) of the said Constitution, the issue of 28 States will not be treated as a legal issue but rather it has become a “political one”. Then what should be the way forward.

The way forward should be that – the input of experts is mostly needed to guide in technical areas, such as devolution of powers or power-sharing, finance and executive. So JMEC’s Chairman must be cautious about the process of draft constitutional amendment by the NCAC to avoid possible boycotting. Because the study discloses that any constitution making all over the world is wrought with confusion, mistrust, conflict, interests of certain class and selfishness among others. In a political gimmick, the SPLM-IO leadership remained guilty conscientious after the creation of 21 States which immediately vanished due to lack of constitutional mandate. Meanwhile, in response to the above, the Head of State with constitutional powers created 28 States that have garnered extensive support from civil population all over the country. And as such both 21 and the former 10 States were thrown in the dustbin. But any attempt to backtrack the government’s decision would be detrimental to the agreement. If these contentious issues continue to develop, then the parties to ARCISS may lack strong political will – perhaps due to the fact that the ruling elites would want to maintain the status quo in power by controlling the constitutional making process. Thus any contentious issue or stalemate, regardless of 28 states in the draft constitutional making process must be resolved based on consensus. The impetus of this consensus however, requires the spirit of constitutionalism – i.e. it must emanate from the will of the people of South Sudan. Therefore, the contentious issue of 28 states should not be used as a leveraged by the oppositions in order to impede the work of National Constitutional Amendment Committee.

The Writer is an Advocate & Legal Consultant at Juba. He is reachable at [email protected]