By: Dr Lam Akol
The signing of the Revitalized Agreement on the Resolution of the Conflict in the Republic of South Sudan (R-ARCSS) in September 2018 was received with jubilation by the war-weary South Sudanese. They believed it was going to bring their suffering to an end. For five years they witnessed terrible horrors of war: killings, displacement, violence against women, destruction of property, violations of human rights and humanitarian law and plummeting economy. The country was on the edge of a cliff. They pinned their hopes on the goodwill of the Parties that signed the peace agreement and the friends of South Sudan in the region and the world over that they will in good faith implement this agreement that was reached after 21 months of negotiations.
However, the sluggish implementation of the Pre-Transitional Period activities pushed them to rethink their optimism. As we know, the Pre-Transitional Period was extended twice to a total of 17 months more than twice the originally agreed period of 8 months. All this was because the incumbent government failed to provide the required funds for the implementation of these activities. As a matter of fact, most of these activities, including the critical issue of the formation and deployment of the Necessary Unified Forces (NUF) remain outstanding beyond the agreed time for implementation. This was a risky compromise made by the Opposition which was under pressure not to insist on that so as to form the Revitalized Transitional Government of National Unity (RTGoNU).
After the formation of the Presidency and the Cabinet, it was unearthed that the President had made appointments in top civil service positions inconsistent with the provisions of R-ARCSS and that Parliament had changed provisions of the Constitutional Bill prepared by the National Constitutional Amendment Committee (NCAC) including transforming itself into the Reconstituted National Transitional Legislative Assembly (RTNLA). These are serious violations and could not have been “oversight” as the Minister for the Presidential Affairs had tried to explain. Things did not stop there, the SPLM-IG tried to overplay its hand on the issue of the allocation of the States to the Parties causing unnecessary stalemate on the matter. This is the subject of this article.
The Responsibility-sharing in the States and Local Government Levels
Article 1.16.1 of ARCSS spells out responsibility sharing at the State and local government levels (in percentage) as 55:27:10:8 for the Incumbent TGoNU, SPLM/A-IO, SSOA and OPP, respectively. Dividing 10 States to these Parties based on this ratio results in 5 State Governors for the ITGoNU, 3 for SPLM/A-IO and one each for SSOA and OPP. This is primary school arithmetic. Yet, the SPLM-IG tried to rob SPLM/A-IO of one of its seats arguing that the calculation gave them 6 and not 5 State governors, and SPLM/A-IO 2 only. This asinine attempt went on for two months delaying agreement on the formation of the States governments and causing more sufferings of our people in the States especially under the current conditions of Coronavirus pandemic where political leadership is very much needed.
In view of the deadlock occasioned by the SPLM/A-IG, the SPLM/A-IO invoked Article 7.11 of R-ARCSS in an attempt to break the deadlock. Article 7.11 stipulates:
“Following the establishment of the RTGoNU, the Parties agree that in the event of any deadlock, RJMEC shall propose measures to resolve the deadlocks. In case any Party(ies) fails to comply with the recommendations of RJMEC of breaking the deadlock, RJMEC will refer the matter to the guarantors”.
On the strength of this article, the Chairman of the SPLM/A-IO wrote a letter to RJMEC on 25 March requesting it to intervene so as to break the deadlock. After meeting all the Parties on 27 March, the Interim Chairman of RJMEC wrote his letter No. RJMEC/C/2020/L/136 dated 1 April 2020 to the Parties. RJMEC proposed that the allocation of the States and Local Government among the Parties be as follows; ITGoNU – 5 States and 2 Administrative Areas, SPLM/A-IO – 3 States and one Administrative Area, SSOA – one (1) State; and OPP – one (1) State.
The SPLM-IG ignored this ruling and went on trying to get an extra gubernatorial seat from the share of the SPLM/A-IO. When this became untenable they turned to the seat of the OPP. Now SPLM-IG claims that the OPP had agreed to relinquish their gubernatorial seat to them; a claim denied by the OPP in a letter to RJMEC on 7 May 2020 signed by five (5) of the six signatories representing the OPP Party in the R-ARCSS. On the basis of this disputed claim that the President presented his unilateral allocation of the States to the Presidency on Thursday the 7th of April, giving SPLM-IG six (6) States Governors and OPP none. It is this list that aroused the current controversy and impasse. Two questions arise: first, does the Presidency have the competence to decide on the allocation of States to the Parties? Second, is it legitimate to take away the position of the OPP given it by the R-ARCSS. We shall attempt to answer the two questions in what follows.
Is the Presidency competent to decide on the allocation of the States?
The Presidency is defined in Article 1.5.1 to comprise the President, the First Vice President and the four Vice Presidents. The same article stipulates that the Presidency is part of the Executive of the RTGoNU. The modus operandi of the Presidency and areas of its competence are covered in Article 18.104.22.168. Of relevance here, these provisions give the Presidency the competence to decide on “matters of Executive Administration” (Article 22.214.171.124.2), “the appointment of Constitutional and Judicial officeholders, including State Governors” (Article 126.96.36.199.4.1) and “matters of supervision of the implementation of this agreement” (Article 188.8.131.52.4.4). We shall look into these provisions sequentially.
First, Executive Administration is the process of running the administration and public affairs within a government. In contrast, allocating State and local government positions is a policy matter which does not fall under this definition. Second, the act of appointment, constitutional or judicial, can only be made to a definite office, which is not there now. There is nothing in this provision which indicates that it is the Presidency that allocates these offices. It is Article 1.16.4 which determines who allocates State and Local Government positions. Third, the supervision of the implementation of the agreement is an oversight function over the institutions of the agreement charged with implementing different aspects of it. These institutions are clearly defined in the agreement.
On the basis of the above, it is abundantly clear that the Presidency has no authority to allocate States and Local Government positions to the Parties.
Is it legitimate to take away the position of the OPP given it by the R-ARCSS?
The R-ARCSS stipulates that the Other Political parties (OPP) are a Party to the agreement and part and parcel of the responsibility sharing. In this specific case Article 16.1.4 allocates to them one gubernatorial position in the States. Therefore, taking away their quota in responsibility-sharing is tantamount to a violation of the agreement. Theoretically, it is possible for OPP to decide to relinquish their position but it can take effect only through amending the R-ARCSS as per Article 8.4. This process can only be initiated by the OPP, through a unanimous decision of its six constituent parties, upon writing a letter to that effect to RJMEC.
The way forward
Article 1.16.4 of R-ARCSS explicitly places the responsibility of allocating State and Local Government positions in the hands of the Parties and not the Presidency. In law when a general provision appears to be inconsistent with a specific one the latter prevails. In this case, Article 1.16.4 is specific that the power to do the allocation lies with the Parties to the agreement.
As things stand today, the Parties have set in motion the processes called for by Article 7.11. They have sought the intervention of RJMEC to break the deadlock and the latter has written its proposal to the Parties on 1 April 2020. It is this proposal that is now on the table. The parties have one of two options to make. The first option is to agree with the RJMEC proposal, and in this case, the Parties sit down, all of them, together to name the State (s) that go to each Party in accordance with its quota. The other option is that should one or more Parties reject the RJMEC proposal the matter is referred to the guarantors as stipulated in Article 7.11. In this case, the Parties will have to wait for the decision of the guarantors.
R-ARCSS has been reached through the compromises made by all the Parties to it. There is no room for re-negotiating it or selective implementation of its provisions.
The current brinksmanship being overplayed by the SPLM-IG will not find support and can only prolong the suffering of our people. They should soberly evaluate the situation putting the interest of our people above any gain of one seat here or there. After all, we are told that this is a government of national unity.
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