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Understanding Arusha agreement and the IGAD process for South Sudan

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By Beny Gideon Mabor

Today is another important day once again to stand before you and discussed agenda of public interest-the interest for peaceful settlement of the emerging deadly armed conflict in South Sudan. Without further ado, I am asked to have comparative and analytical understanding of the Arusha Agreement on the reunification of the SPLM party and how does it relate to the IGAD-led peace process for South Sudan. Second, I will also briefly walk you through the IGAD-led peace process particularly the latest protocols on transitional arrangements that may lead to the establishment of the Transitional Government of National Unity and possible institutional reformed expected therefrom; and possibly any other areas or procedures that the stakeholders at the negotiating table or IGAD mediation leadership and their international partners might have missed in the twin peace processes in finding lasting solution to the emerging deadly armed conflict.

In order to find solution to any problem, it is better first to find what is the root cause of the problem? In this case, what is the genesis of the crisis in the SPLM, its effect and attempt to reconcile ranks and files of SPLM in relation to IGAD-led peace process for South Sudan? These crises within the SPLM were obvious to tear apart the country if mismanaged and it was just a matter of time bomb! As a result, SPLM passed through what I called six stages of turbulence growth from its formation in 1983 with immediate start of power struggle which later after nine years of forceful union emerged into 1991 famous split into SPLM Nasir led by Dr. Riek Machar, SPLM Torit by Dr.John Garang and later SPLM/A United by Dr. Lam Akol respectively. After first reunification agreement in 2002, again the power struggle rejuvenates in 2004 with another famous Rumbek Leadership Conference where the looming disaster was materially resolved.

Exactly four years down the line in 2008, the SPLM faced another power struggle during the general convention which led to the compromise by maintaining the status quo of SPLM leadership in totality. In other words, Chairman Salva Kiir, Riek Machar, Wani Igga and Pagan Amuom were all maintained in their respective positions. In 2010, SPLM continue to inherit power struggle syndrome with candidates’ nomination to stand general elections throughout the country. The partial mishandling of the nomination procedure allow others to reject the results of elections and create or join their rebellions including late George Athor Deng, late James Gatluak Gai, Divid Yau Yau to mention a few.

Finally in December 2013, the time bomb blast with full gear! This came at a time when all activities for the ruling party to organize itself according to the party’s constitution and basic rules has elapsed so far for reason (s) best known to the party leadership. On December 6, 2013, the faction of leaders of SPLM at Political Bureau and National Liberation Council levels led by Riek Machar hold their first press conference where they highlighted issues facing SPLM and the country. In that press statement, the group says “the crisis reached boiling point in March 2013 when General Salva Kiir cancelled the meeting of the National Liberation Council; issued a Presidential Decree withdrawing the delegated powers from his Vice President and First Deputy Chairman.

They went on and say “the deep-seated divisions within the SPLM Leadership, exacerbated by dictatorial tendencies of the SPLM Chairman, and the dysfunctional SPLM structures from national to local levels are likely to create instability in the party and in the country”. End of quote. A similar press conference was done on 8 December, 2013 by second Deputy Chairman James Wani Igga either by what many people called press conferences by default or design. The objective of the latter press conference was to clarify few critical issues that will help shed light on the real situation unlike ill intention of the disgruntled Group 6th December who were described to have lost power in the SPLM and in the Government.Therefore, these statements of counter accusation were prima facia evidence attributable to both parties indicating share of greatest responsibility of the current crisis in the SPLM and South Sudan.

As all of you are aware of the December 13-15, 2013 extraordinary meeting of the SPLM National Liberation Council convened in Juba to discuss the SPLM basic documents, the same section of senior SPLM officials after having attended the first day of the deliberations with observation of what they called “decision on mechanical majority procedure did not show up on the second day, something another section of SPLM leadership under Chairman Salva Kiir considers as ill intention and attributed to them the charge of the alleged coup attempt when violence broke out on 15 December 2013.

OBJECTIVE OF ARUSHA SPLM AGREEMENT IN RELATION TO IGAD PEACE PROCESS

After chronically finding of the mess in the SPLM as numerated above, the African countries with shared history of liberation struggle namely: Ethiopia, South Africa and Tanzania thought wise to nurse the ailing SPLM party for the interest of peace and security of South Sudanese and the region for that matter, which gave birth to the SPLM-interparty dialogue in Arusha, Tanzania under auspices of the ruling Chama Cha Mapiduzi.

The strategic objective of the Arusha SPLM reunification agreement is that the parties accept having failed the people of South Sudan. The framework agreement creates a road map to help move IGAD peace process without delay since they have eventually become one SPLM family. The Agreement focuses on well-defined 44 reforms broadly classified as political, organizational, and leadership matters. Again, the SPLM politically commits to implement cessation of hostilities (CoH) agreement and all the additional protocols signed in Addis Ababa, and promise to apologize to South Sudanese for failing their liberation aspirations and instead assault them.

In fact the loss of ideological direction was recognised. Therefore, I honestly believe that the return of the SPLM political ideology, if any, is only based on rectification of previous and current errors and return to the vision and project of state and nation building for provision of human security, service delivery, and protection of territorial integrity, economic development and physical development amongst others. All this will resolve the national crisis and achieve a transition to sustainable peace and stable democracy. Section 7 on political issues of the Arusha agreement is to “redefine its political ideological direction, developed path, the nature of it democracy, system of governance and the nature of society and state it inspire to build. This is a very big responsibility. It must be implemented in order to salvage the country from collapse along ethnic lines.

In other words, both discussion in Arusha SPLM Inter-party dialogue and the IGAD-led peace process must simultaneously focus on ensuring a functional application of the doctrine of separation of powers both in the SPLM party and the government with designed flexible practice of internal democracy. However, the primary focus should be that the Government ensures three arms of government not only enhance and consolidate its individual functional capacity but also be able to exercise its constitutional mandates of checking the other arms.

While the IGAD-led peace process is keen to make the peace process more inclusive of negotiating parties; the civil society organizations and other non-state actors on the other hand also supported that clarion call for inclusivity in order to have people-centered political settlement that will guarantee its popular acceptability and local ownership. The peace agreement must ensure constitutional safeguards to be agreed in the peace agreement that will necessarily make the executive accountable to the other arms of government and thus enable a functional application of the doctrine of separation of powers between three organs of government. At instant, there are reasons to believe that without such safeguards in place, the already powerful executive in place will be much more powerful and continue to be powerful and will never listen or be tamed to culture of constitutionalism again.

CHALLENGES OF THE ARUSHA SPLM RE-UNIFICATION AGREEMENT

The Arusha Agreement on reunification of SPLM is best placed and at right time to resolve South Sudan crisis both in the party and the government. Unfortunately, the agreement is not an independent peace deal per se. It is only successful and conditional on peace if it is signed in Addis Ababa under the IGAD-led process. The difference between IGAD peace process and Arusha SPLM Re-unification agreement is that the former have elements of military and security arrangements which the latter do not have. Another serious challenge is that some visible hands in the regional and international community are not happy with the reunification of SPLM as this will consolidate the rank and file of the ruling party and continue to lead the political authority which is a threat to the neighboring hostile countries and beyond in as far as geopolitics is concern.

It is also seen as a substitute to the IGAD peace process which create room to believe the failure of the IGAD mediation leadership and the international community specially the TROIKA organizations that are funding the peace process. That is why Ethiopian Prime Minister H.E Halie Mariam Deselgn did not show up at Arusha nor even sent an official representative of the Government to witnesses the signing of the SPLM reunification agreement.

The Arusha Agreement also stands high chances of disowning or throwing it to the dustbin by South Sudanese leaders and citizens themselves if not well managed again just like other agreed protocols in the IGAD peace process and were violated. This is because there is no clear link between Arusha SPLM reunification agreement and the IGAD-led peace process, whether the same spirit and humility widely seen in Arusha during the signing ceremony will be devolved in the IGAD-led peace process. Apparently, there is observation on the disconnection between the SPLM-In Opposition’s political units that have signed the SPLM reunification agreement and the military commanders of the armed SPLM/A in opposition on the ground.
Just few days upon arrival in Nairobi, Kenya from Arusha after signing the SPLM reunification agreement, Riek Machar, a partner in the Arusha agreement clearly stated that “since Salva Kiir has acknowledged being responsible for causing the crisis in the country, he should just resign. He repeated this in several other media interviews, and it is not very clear whether this statement is meant to appeal to the president to step down from both party chairmanship and the presidency of the country or a condition to the reunification path. Dr Riek continues to say that “the Agreement will not deliver if Salva Kiir Mayardit remain the chairman of the unified party.

On the other hand, President Salva Kiir in response said “he might not allow all the officials who were dismissed from the SPLM to return to the party or to government. And add on by saying “it has become a fashion in South Sudan that, if you want a position, you rebel. When you return tomorrow, you will be given a position. I don’t think I will continue doing this thing”.

In fact, such statements alone show an element of bad faith the implementation of the agreement. President Salva Kiir insisted that the word “reconsideration” of those dismissed has been changed to “revocation” because by revocation, they must go back to their positions which they occupied prior to the conflict. In this case, it is mindboggling why President Salva did not issue SPLM party order up to now according to the SPLM agreement to reinstate the said dismissed members back into the rank and files of the SPLM nclduing his first deputy Dr. Riek Machar. Is it related to this cloud of doubts in the counter accusatory statements between the two SPLM leaders or what? There is something fishy and may endanger the implementation of the SPLM reunification agreement.

SPECIFIC RECOMMENDATIONS THE IGAD MEDIATORS SHOULD URGENTLY UNDERTAKE:

Heads of State and Government Summit

In practice, events involving Heads of State and Government are so tightly arranged and usually well planned ahead of time. Surprisingly, recent IGAD summits have suffered total lack of step design. There needs to be a clear plan of action for the summit, to deliberate and take a bold action on it as a countable achievement. It is critical that Heads of State and Government are adequately prepared and briefed before they arrive in Addis Ababa, Ethiopia or elsewhere agreed. Otherwise, the summit will make little progress, and at worst, go backward as the case being witnessed for the last seven IGAD summits starting from 23rd to 29th extraordinary summit of Heads of State and Government on South Sudan crisis but all without proper achievement.

Dialogue With South Sudanese
At this stage, the occasional press releases or press conferences or summit resolutions are not enough for the people to understand what is happening in the peace process. The mediation needs to rationalize the full force of South Sudanese society towards an irreversible peace. Most South Sudanese – even those stakeholders at the negotiating table have little idea of what is going on the IGAd peace process for Sudan. So far, it is the church leaders and some few civil society activists who have demonstrated willingness to stand up and stated the uncompromised truth about the dilemma of IGAD-led peace process. Therefore, IGAD should more actively compliment these efforts, and practically come to towns and villages of South Sudan to preach language of peace and solicit their views for consideration.

Representation of Political Parties, and Role of Civil Society Delegates

There is no legitimate peace process if it excludes the diversity of political forces in the country. Although most political parties are weak, exist only by names and at worse lack premises but carry their identity in the personalities of the political leaders, yet the exclusion of the official opposition party like SPL-DC and other registered functioning political parties is a discredit and violation of the 9 May agreement that call for an inclusive multi-stakeholder peace process. The recent 29th session of IGAD Heads of State and Government also exclude the SPLM leaders’ former political detainees and civil society on the request of the warring parties.

On civil society, much has been said about our participation in the IGAD peace process. Regrettably, the most useful contributions from civil society have come from Citizen for Peace and Justice CPJ delegates and some other colleagues outside the peace process including mualana David Kuol Deng and his wife Elizabeth Ashamu and many of our colleagues at the South Sudan Law Society; the Development Policy Forum DPF and the Sudd Institute to mention a few who have authored some documents for us to push them into consideration at the negotiable table.

This is not because the rest have no capacity to contribute, but the representatives of South Sudan Civil Society Alliance and the Diaspora Civil Society was a real mess as both are direct or indirect associates of the government and the SPLM/A in Opposition respectively. Of course nobody amongst non-state actors is deemed an enemy of the state but as neutral body with no political color and interest, we must show the sense of middle ground in search of truth, nothing else but the truth to make a difference. Therefore, IGAD this time round in the spirit of multi-stake holder format, should allow stakeholders including civil society who want to change their delegation in order to meet representative and technical capacity if there is reason to delay the peace process not later than now.

Avoid CPA as the Template for the Mediation

The comprehensive peace agreement CPA in 2005 between Sudan and the SPLM/A should not be a wholesale out of context. Yet, there are good things in it to learn. However, the IGAD mediation, and most prominently its former chief Mediator General Lazuro Sumbeyo and his staff, some of whom are still staff to date in Addis Ababa have let the CPA model took control of their thinking and their tactics of achieving peace. How the peace was achieved in 2005 should not be the rule of procedure in 2015 as time, circumstances and parties involves in the armed conflict are different from the previous ones. In other words, I am recommending that CPA model should be used as an advisory guide for the ongoing IGAD-led peace process, but not carryover the old guide.

In this armed conflict, the mediators should understand where they have gone wrong, and quickly take corrective action. Negotiation is a diplomatic engagement. It is not a divine work and if you fail to make peace, you can honorably step aside. All of you have witnessed the innumerable attempts by mediators who have tried to resolve the armed conflict in Palestine but all in vain. The failure of both UN former chief Kofi Annan and Lakhdar Brahimi to resolve the Syrian crisis is considered normal and they are backed to the UN systems. The mediators or IGAD should declare it failure and allow other persons or institutions to take over the South Sudan peace process.

RECOMMENDATIONS
As I speak for the civil society, on behalf of common men and women, we are asking the warring parties, the IGAD mediation leadership and international community that the following specific asks be immediately consider and include them in the peace agreement:

(1) Call on the warring parties and other stakeholders with direct political color to quickly operationalize the terms and conditions of the Arusha SPLM reunification agreement in order to help move the IGAD led peace process without delay. This will greatly help as the question of power sharing will not be an issue for discussion since SPLM has come back into one party that cannot divide power amongst itself, but will only allocated proportionate seats to other political parties. The IGAD peace process should focus on permanent ceasefire and implementation modalities.

(2) We know and regret that the negotiation has now shifted from national transformation to sharing cabinet positions. This is clearly evident in both the Arusha and Addis Ababa protocols. It should be noted that the civil society strongly hold different opinion and ask the agreement and eventually post-conflict constitution to abolish the practice of appointing cabinet ministers from among parliamentarians. By doing so, parliament’s ability to impeach a president or a rogue member of the cabinet would be enhanced.

The post conflict constitution should further enhance the institutional check on all appointees by ensuring that every presidential appointment is subjected to parliamentary scrutiny, vetting and approval. This should be applicable to all political beneficiaries of the expected peace agreement. The civil society also proposes that the post conflict constitution limits the number of ministers to at least 27 Ministries and that it abolished the position of deputy ministers.

(3) We are deeply concerned about non-adherence to protocols signed by the parties so far. A clear and flagrant violation has been frequently coming from the SPLM/A in Opposition in attacking government position in different areas in grater Upper Nile. Therefore we propose that the agreement after having established Joint Monitoring and Evaluation Commission, include reasonable number of civil society to help transitional government of national unity and the international community in the implementation, monitoring and evaluation of the agreement. We emphasize that the president and his entire cabinet should abide by the requirements of the peace agreement and the constitution should have provision that subject senior government officials for impeachment by the legislature for violating it. This can happen when citizens are granted enormous powers to demand good governance and accountability from their leaders, especially elected leaders. It should grant citizens to have the power to recall their MPs.

(4) Both Arusha and IGAD-led peace processes have now radically shifted from the people’s clarion call for a redefinition of the political structure to a debate on renegotiating themselves into political power. We are calling upon the government and the SPLM in Opposition to give people a change for consultation on system of governance, while strongly emphasizing federal structure as the best option. This governance arrangement will deconcentrate state power from the institution of the presidency or central government and create myriad level of governance based on broad representation. It will mark a new beginning of competitive politics based on political ideology

(5) While both Arusha and Addis peace talks seem to restructure the executive arm of the government alone, we in the civil society are of the opinion that this restructuring process should include the restructuring of the other two arms of the government – the judiciary and the legislature. We noted with concern that the current judiciary is the weakest, least trusted and the most dysfunctional of the three arms of government. To correct this, the structure of the judiciary should be changed through the establishment of a constitutional court whose function shall be discussed in the peace agreement and the transitional constitution

(6) The peace agreement should include constitutional amendments that establish an independent office of Director of Public Prosecutions separated from the Ministry of Justice where it is suffering from vertical and horizontal interference, with the responsibility of delivering rule of law and administration of justice in the country. The DPP should have powers to direct the Inspector General of the National Police Service to investigate any case, and further provide that in such an event the latter must comply. This will reduce the number of politically motivated selective prosecutions and acquittals.

(7) On legislative reform, the civil society would like to see an agreement that does not over burden the executive with the monopoly of control of state power. Power should also be diffused to the legislature. Therefore, the peace talks should enable constitutional amendments that will make the National Legislature to become an effective institution of representation, conflict resolution and lawmaking body.

One fundamental recommendation in this regard is that the national legislature should move from a joint - chamber house properly defined two-chamber House. This will be necessary if a federal political structure is adopted. The post conflict constitution should bestow upon the senate the responsibility of not only representing the federal states but protecting the interests of state governments and ensuring conflict resolution.

The two chamber-houses (the National Assembly and the Senate), should take into consideration concerns about good governance, equality and gender parity.30% of seats in the National Assembly and the senate should be reserved for women. A slot of 15 % nominated seats should be set aside to represent special interests such as the youth, the minority and persons with disabilities. This will enhance the system of representation and bring services closer to the people. The two houses will form an important check and balance not just for the executive, but also for one another. In addition, it will facilitate an extra check and balance on the powers of the executive.

(8) The civil society want a peace deal that defines the roadmap to the next general elections, clearly define the process of being declared president, Governor, commissioner or member of the national legislature. In this case, the peace agreement should clearly define the roadmap on how general elections will be done at the end of the transition period. These procedures include a clear definition of how the president, governor, commissioner or members of parliament are elected and sworn including how election petitions against any president-elect, Governor-elect or commissioner-elect are addressed. This further emphasis the need for an independent judiciary that can act as an arbitrator in the event of unfairness or disagreement

Beny Gideon Mabor work for South Sudan Law Society as JEPDG Liaison Officer to IGAD Peace Mediation for South Sudan. He can be reached via benygmabor@gmail.com. He delivered this speech at the public lecture organised by South Sudan Law Society JEPDG Program on Friday 13 February, 2015



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