By Lam Akol
On the 12th of October 2020, the government in Juba and one faction of SSOMA led by Gen Thomas Cirillo issued a Declaration of Principles (DoP) so as to guide their future negotiations. The document was dubbed “Declaration of Principles between the Revitalized Government of National Unit[y] (RTGoNU) and South Sudan Opposition Movements Alliance (SSOMA). The ten-point document shows agreement on all points except two and a fraction of a third. It is, therefore, feasible to analyze its contents, especially in view of the fact that the reason that has been advanced by SSOMA since 2018 for its rejection of the Revitalized Agreement on the Resolution of Conflict in the Republic of South Sudan (R-ARCSS) was/is that it did not address the root causes underlying the problems of war in South Sudan. Hence, it is expected that the DoP would address these causes. We shall do the analysis point by point. But before we do so one needs to clarify two issues central to the discussion.
What is a Declaration of Principles (DoP)?
In this context, the DoP is a set of principles that guide the negotiations of the two or more parties. Issues to be discussed must fall within the framework of the DoP and none outside it can be tabled at a later date, except, of course, under the very rare circumstance when the signatories to the DoP agree to so include. Therefore, it is safe to assume that the root causes meant by SSOMA must have been included in this DoP.
What is the scope of applicability of R-ARCSS?
The R-ARCSS, or indeed any other agreement agreed upon to end the conflict in South Sudan, is not a stand-alone legal and constitutional document. It is a political agreement that complements the Transitional Constitution of the Republic of South Sudan 2011 (as amended) (TCRSS 2011). That is why it must be incorporated as a whole into the TCRSS 2011. In that incorporation, the Parties have agreed that the provisions of the TRCSS 2011 that are consistent with R-ARCSS remain intact and those that are inconsistent with it are replaced by the provisions of R-ARCSS to the extent of removing the inconsistency (Article 8.2 of R-ARCSS). With this understanding in mind, one cites in what follows both documents in support of a point of view.
Analysis of the DoP
We now turn to consider the ten points of the DoP, one by one. The numbers as came in the DoP are maintained for ease of reference.
1- Establishment of a democratic, and federal system of governance anchored on the principles of separation of power and wealth sharing between various levels of governance in the country.
1.1- The establishment of a democratic and federal system of governance is reaffirmed in Article 1.4.11 of R-ARCSS (quoted below). The expression “anchored on……in the country” is superfluous as these are the characteristics of any federal system.
1.2- On federalism, the R-ARCSS goes beyond this statement. Specifically:
(a)- Paragraph 5 of the Preamble reads: “Cognizant that the federal system of government is a popular demand of the people of the Republic of South Sudan and the need for the RTGoNU to reflect this demand by way of devolution of more powers and resources to lower levels of government”
(b)- Article 1.4 is titled the “General provisions applicable during the Pre-Transitional Period”. This means that its provisions are applicable during the Pre-Transitional Period. In this regards the following articles are relevant:
B1- Article 22.214.171.124 makes it clear that “the devolution of more powers and resources to lower levels of government”, is to be effected during the Pre-Transitional Period.
B2- Article 1.4.11 stipulates that: “The Parties reaffirm their commitment to the ARCSS that a federal and democratic system of governance that reflects the character of the Republic of South Sudan and ensures unity in diversity be enacted during the permanent constitution-making process”.
B3- Article 4.11.4 states: “In line with the agreement on the devolution of more powers and resources to the States and Counties, wealth sharing and revenue allocation shall be worked out by the RTGoNU within three (3) months of the commencement of the Transitional Period.”
B4- Article 4.11.5 provides that: “The proportion of the natural resource wealth of South Sudan shared with the States and counties shall be increased and that the final terms of the increment and formulae to be applied shall be determined in the permanent constitution”.
B5- Articles 4.11.6 ensures compliance with the allocation of resources as follows: “The RTGoNU shall not withhold an allocation due to a State or Local Government in South Sudan. Any level of Government may initiate proceedings in the courts of law should any other organ or level withhold its duly authorized funds”.
All these Articles are about the division of power and resources among the various levels of government during the Pre-Transitional and Transitional Periods within a federal system. In fact, Article 1.4.11 commits the Parties a priori to adopt federalism at the Constitution-making process.
2- The national identity shall be based on respecting ethnic and regional diversity and communal rights including the rights of communities to preserve their history develop their language, promote their culture and expression of identities.
This provision is copied near-verbatim from Article 6.2.5 of R-ARCSS which stipulates: ”Respecting ethnic and regional diversity and communal rights, including the right of communities to preserve their history, develop their language, promote their culture and expression of their identities.”
3- Drafting a permanent Constitution, starting with the process of …………
3.1- 3(a) and 3(b) are provided in Article 6.6 of R-ARCSS
3.2- 3(c): Article 6.11 provides for a Constituent Assembly to debate and adopt the permanent constitution from the 27th month of the Transition. There are pros and cons in adopting a permanent Constitution by a Constituent Assembly or by referendum, space will not allow delving into that here. Suffice it to mention that whereas a referendum guarantees a popular endorsement of the constitution, the nature of the exercise being a ‘no’ of ‘yes’ choice doesn’t ensure popular scrutiny of the specific provisions of the constitution. That is why most countries take the Constituent Assembly route.
4- Establishment of a (sic) high level, competent and effective oversight mechanism…
This is a verbatim copy of Article 4.1.4 of R-ARCSS.
5- Civil and public reforms shall be designed ……
This provision is a restatement of Articles 138(8) of the TCRSS 2011 read together with the relevant provision of Article 139(1)(i) on affirmative action. Also, Article 1.2.10 or R-ARCSS states that RTGoNU shall: “Restructure, rehabilitate, and ensure radical reform of the civil service”. What is stated here are details of such radical reform.
6- The parties shall work to expedite the formation of ….
The R-ARCSS has devoted a whole chapter (Chapter V) to “Transitional Justice, Accountability, Reconciliation and Healing”. It covers general principles (Article 5.1) and specific provisions on Commission for Truth, Reconciliation and Healing (Article 5.2), Hybrid Court for South Sudan (Article 5.3), Compensation and Reparation Authority (Article 5.4) and Ineligibility for participation in Governments (Article 5.6). Therefore, expediting the formation of these three bodies is never a new principle but rather urging to implement these provisions in the R-ARCSS.
7- The land in South Sudan belongs and owned by the indigenous communities and its use shall be governed by law.
This provision is more specific than Article 169 of the TCRSS 2011 which is ambiguous and subject to different interpretations. Therefore, it is a valid point reaffirming what was agreed in the Comprehensive Peace Agreement (CPA) 2005 on land.
8- The borders and boundaries of South Sudan shall be as of 1/1/1956.
There is no disagreement on this point. It was the guiding principle of the work of the Technical Boundary Committee (TBC) as provided in Article 126.96.36.199 of the R-ARCSS.
9- Establishment of a national professional security sector representing the ethnic diversity of the country.
The R-ARCSS provided in Article 2.1.11 for a workshop on “Permanent Ceasefire and Security Arrangements” which was held in Khartoum. One of the tasks of the workshop was to “determine the type and size of security forces needed for the protection of all cities”(Article 188.8.131.52). Our information is that what was agreed in the workshop is that the national security sector should be professional and reflect “national diversity” and “regional representation”. Whether these two bracketed terms can replace “ethnic” or whether “reflecting” means the same as “representing” is open to debate.
10- The regional and international partners shall take active participation in the Rome initiative and in subsequent implementation of the agreement
That the regional and international partners shall have active participation in the Rome initiative is a statement of a fact. They are already there. However, whether they will participate actively in subsequent implementation of the agreement is doubtful as the implementation of R-ARCSS or lack of it has shown. But whatever the case may be, the role of the regional and international partners before the outbreak of war has never been a root cause of the South Sudan problems leading to civil war or national schism.
From the foregoing analysis, it is crystal clear that the Declaration of Principles between RTGoNU and SSOMA signed by the two parties in Rome on 12 October 2020 has not deviated from the provisions of the R-ARCSS. This includes even if the points not yet agreed were to be settled in favour of SSOMA. Point No. 7 is valid in the sense that it restated a principle agreed in the CPA in 2005 but in its inclusion in the TRCSS 2011 wasn’t clear enough.
After the long journey now, it is fairly obvious that R-ARCSS offered a good opportunity for the people of South Sudan to enjoy a sustainable peace if implemented in letter and spirit. The real problem facing the country now is in the lack of will of the Government in Juba to implement the R-ARCSS as agreed. This is where all efforts should be directed.
Lam Akol is the leader of the National Democratic Movement (NDM)
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