By Roger Alfred Yoron Modi, 7th February 2017
The National Dialogue announced by President Salva Kiir as an initiative to “end violent conflicts in South Sudan, reconstitute national consensus, and save the country from disintegration and usher in a new era of peace, stability and prosperity” is misleading and not within the framework of the Agreement on the Resolution of the Conflict in South Sudan ARCISS as is being purported.
Though this may sound surprising to some if not most, President Kiir has no authority to form any committee under Article 101 (j) of the Transitional Constitution of the Republic of South Sudan TCRSS, the Article he cited in the Republican Order NO.27/2016 for the formation of the National Dialogue Steering Committee.
Under the terms of ARCISS, which ought to prevail over the TCRSS, the power to nominate, appoint and establish independent Commissions, interim and ad hoc Commissions and Committees shall and can only be exercised under:
- Chapter One, Article 8 (1) read together with Article 8 (1) (3) which require the President to act in consultation with the First Vice President in order to reach at mutual understanding and agreement. Or
- Chapter One, Article 9 (1) (3) read together with Article 9 (1) (3) (2) which give the Council of Ministers, with the agreement of two-thirds (67%) and a quorum of at least twenty-three (23) of its Members present, the authority to decide in the event of a deadlock.
Even if the government would argue that the required consultation was conducted, the fact that the President’s Order has been based on the Article101 (j) simply makes it (the Order) inconsistent with the ARCISS. In other words, a body formed based on the TRCSS, violating the very letter and spirit of the ARCISS, cannot be within the framework of the ARCISS.
Lack of Political Will
It is rather self-defeating for President Kiir to declare himself Patron of the National Dialogue on one hand and on the other hand proclaim the government a stakeholder— all without mentioning who the other stakeholder(s) is (are) and what role will it (they) have to play in the said Dialogue. As already argued by opposition groups and others, for a genuine and inclusive National Dialogue, Kiir should be a stakeholder but not the Patron. He is the head of the government which shall be a stakeholder in the Dialogue hence he cannot again double up in the same process as the Patron.
Kiir in his address to the Assembly said the government will work “very closely” with the regional, continental, and international partners, including IGAD, JMEC, AU, Troika, and the UN to ensure the credibility and effectiveness of the National Dialogue. However, as the AU, IGAD, the UN, TROIKA and the EU call for inclusivity in the proposed National Dialogue and in the implementation of the ARCISS, the utterances from the government in Juba has become clearly contradictory, proving further the lack of political will for a genuine, inclusive National Dialogue.
For instance, the Minister of Cabinet Affairs Dr. Martin Elia Lomoro responded to the calls for inclusion with vague, unconvincing excuses. “It [the National Dialogue] is not subject to criticism. It’s not subject to review. It is not subject to being used up by any other organization or individual…That is a process whereby all of us are expected to go and air our grievances and preserve the integrity of the country,” Eye Radio quoted Lomoro as saying. Such statements are not in conformity with the ARCISS itself and should have been condemned and disowned by the government if they are serious about the Dialogue.
Calls for inclusion of all South Sudanese in the proposed National Dialogue and in the implementation of the ARCISS have nothing to do with preserving the integrity of the Country. Again, for a National Dialogue within the framework of ARCISS, the Countries and Bodies that are part of the ARCISS whether as the Guarantors, Partners and Witnesses or part of the Joint Monitoring and Evaluation Commission JMEC, can have their say, especially when such a Dialogue is not being inclusive as is now.
One of the objectives of the National Dialogue, Kiir enumerated, is to agree on steps and guarantees to ensure safe, free, fair and peaceful elections and post transition in 2018.“This opportunity allows the people of South Sudan to discuss issues related to the structure of the State, renegotiate social contract, and revitalize their aspirations for development and responsibility in the world of nations,” he told the Assembly. “The resolutions of the National Dialogue, once accepted, shall be binding on all the stakeholders.”
First, it is simply unrealistic to believe that there will be any safe, free, fair and peaceful elections in 2018 when violence is still ongoing in parts of the Country, over three million have been displaced from their homes, more are still fleeing violence, the economy is in dire shape and several armed groups including the SPLM/A-IO led by Former First Vice President Dr. Riek Machar, the Former leader of the National Alliance, now chairman of the National Democratic Movement Dr. Lam Akol, all consider the ARCISS dead and are not part of the Dialogue.
Secondly, the issues of the structure of the State and social contract have a clearly defined roadmap under Permanent Constitution-making Process (ARCISS Chapter Six) hence do not need to be discussed or renegotiated under the Dialogue unless the government now considers the Agreement dead and are carrying out the Dialogue as a new approach outside the ARCISS.
Before his term of office as UN’s Secretary General ended last December, Ban Ki-Moon wrote: “President Salva Kiir has pursued an ethnically-based strategy to suppress dissent, muzzle the media, exclude significant South Sudanese actors in the peace process and unilaterally implement an agreement to reach elections. Fighting has now spread across the country.”
Right now, with all the contradictions in the objectives of the Dialogue and the appointment of majorly loyalists to steer the process with no or little consideration to dissidents to take part from the start, it is reasonable to conclude that the intention of the National Dialogue is actually to sideline the ARCISS and dissidents so as to extend the term of office of the current government without elections.
JMEC, being the body responsible for monitoring and overseeing the implementation of the ARCISS, the mandate and tasks of the transitional government, including their adherence, should, invoking Article 3 of Chapter Seven of the ARCISS, issue appropriate corrective measures with respect to the National Dialogue intended within the framework of the Agreement. The corrective measures should declare the two items below as inconsistent with the ARCISS and thereby not within its framework as claimed:
1- Republican Order NO.27/2016 for the formation of the National Dialogue Steering Committee that is grounded on non-existing Article 101 (j) of the TCRSS instead of ARCISS.
2- The objectives and approaches for the National Dialogue as enumerated by President Kiir.
JMEC should thereafter ensure that decrees and orders on National Dialogue within ARCISS are firmly grounded on the letter and spirit of the ARCISS itself without contradiction. Ensuring strict adherence to the ARCISS will minimize the unknown in the near future since for far too long the government has never been consistent.
Again, while it is not bad to laud the promising statements by Kiir that the government will provide any necessary political will needed to make the National Dialogue a reality, the JMEC Chairman Festus Mogae should cease from issuing blanket statements on the announced Dialogue before having the process met the very basics of what it requires to be regarded as within the framework of the ARCISS.
On their part, if the government is indeed for a genuine and inclusive National Dialogue within the ARCISS, they should allow for wider participation of all key actors, inclusive formation of bodies to spearhead the process and together with all stakeholders defined approaches and objectives that are consistent with the Agreement. The government should also persuade hardliners in the regime who want to maintain the status quo at the expense of peace to embrace dialogue and non-violence.
The right time is now for JMEC, the region and the international community to act decisively to ensure inclusive implementation of ARCISS and a genuine and inclusive national dialogue with an outcome that shall be binding on the government and all stakeholders including those carrying arms. Else, the region and the international Community should immediately initiate a new peace process representing the current realities in South Sudan. Those are the only ways to quickly bring-in total peace and avoid eminent elections crises or power vacuum in the Country when the lifespan for a transitional government of national unity stipulated in the ARCISS expires sometimes soon.
Till then, let me conclude by the below quote from President Kiir’s address to the parliament:
“I take the view that a successful national dialogue can only be realized if and when all the people of South Sudan have broadly participated, agreed, and accepted its agenda and outcomes.”