By Roger Alfred Yoron Modi, July 7th 2018.
On Tuesday, the Khartoum mediation team on South Sudan peace process released a revised proposal for a power-sharing deal between the South Sudanese parties and entities in an Igad-led process aimed at ending the conflict in the youngest nation.
The proposal dubbed “Agreement on Outstanding Issues of Responsibility Sharing” provides that the incumbent President Salva Kiir shall continue as President, while SPLM/A-IO Chairman Dr Riek Machar shall assume the position of First Vice President, both for the next transitional period. According to the proposal, the incumbent government shall nominate a Vice President and the Other Parties and Entities shall select a Third Vice President.
The national cabinet, the proposal provides, shall comprise of 30 ministers, with the incumbent government coming up with 17 ministers, SPLM-IO 8 ministers, SSOA 2 ministers, FDs 2 ministers, and Other Political Parties 1 minister. Also, there should be 9 deputy ministers during the transitional period which the proposal has allocated in the following ratios: the incumbent government 4, the SPLM-IO 2, SSOA 1, FDs 1, and Other Political Parties 1.
According to the proposal, the next transitional national legislative assembly shall consist of 440 seats. It has allocated to the incumbent government 266, SPLM-IO 106, SSOA 46, the Other Political Parties 17 and the FDs 5 members.
The Khartoum released proposal has made several other provisions including on the number of states.
However, for the purposes of this article, the author presents the following recommendations with the aim of improving the proposal and making the final agreement implementable:
1- On the nomination of a Third Vice President
The proposal provides for a position of a The Third Vice President in the structure of the Presidency of the next Transitional Government of National Unity TGoNU.
The proposal states, in Article 1(1) (d), that Other Parties & Entities (SSOA, FDs & OPP, as a bloc) shall select The Third Vice President. First, this is a departure from the last Igad “Revised Bridging Proposal” which provided in Art. 2 (d) that The Third Vice President shall be nominated by Other Parties & Entities (SSOA, FDs & OPP, as a bloc) not to be “select[ed].”
Second, any final agreement on this matter should avoid being vague. The proposal (Agreement) should make more explicit provisions on the procedure for the “nomination” or “selection” of the Third Vice President. Shall it be by consensus? What shall happen in case the parties and entities fail to come up with a consensus? Should they resort to voting and reach a decision by a simple majority or a two-thirds majority vote? In case of voting, given the differences in size, influence each party and entity has on the ground, how many votes shall each be allowed to cast? These should all be explicitly provided for in the Agreement (proposal). This is to avoid controversy and possible pulling out by some parties/entities from the agreement thereby negatively affecting its implementation as required. For very clearly, those parties and entities are likely to disagree on settling for one nominee to the position of the Third Vice President, especially if explicit provisions are not included in the agreement on the procedures for the nomination. The monitors of the Agreement, JMEC which is expected to be reconstituted for the purposes of inclusivity should be involved in monitoring and verifying that the processes for nominations by the parties and entities are democratic and in line with their own internal procedures and equally important- the revitalized ARCSS.
2- On a woman in the Presidency
Article 1(1) (e) of the Khartoum released “Agreement on Outstanding Issues of Responsibility Sharing” provides that either the Vice President or the Third Vice President shall be a woman. Well, it is encouraging that sustained efforts are being made to have South Sudanese women take part in top decision-making positions in the Country.
However, the above provision requires reform since in its current form it is prone to exploitation and could become a source of major controversies and disagreements during the implementation period.
This provision can be a source of disagreement, for example, if all the parties and entities produce men as their nominees for the posts of Vice President and Third Vice President respectively. Of course, each of them could since there is no any provision in the proposal that prohibits any particular party from nominating a man for the position allocated to them in the Presidency. To settle this loophole, the proposal should be improved to explicitly state which party shall nominate a woman as their Vice President or Third Vice President.
To be fair to the two parties and entities given the posts of the Vice President and Third Vice President respectively, the author suggests that the agreement should make it explicit that one party shall nominate a woman as Third Vice President for the first half of the period of the transition and the other party shall nominate a woman as Vice President for the second half of the transition or vice versa. Based on that formula, each party and entity should be able to nominate a man for the other half period of the transition. This will create balance and confidence. The Agreement should also be clear on which party shall start the first half of the transition with a woman as their nominee to the Vice President or Third Vice President post.
Otherwise, a separate (Fourth) Vice President post should be created for a woman to be nominated by the Women block and other relevant bodies, through a clearly defined procedure to be stipulated in the Agreement.
The other option is to remove the mandatory provision in the proposal on having a woman as a Vice President or Third Vice President and leave the matter to the discretion of each party/entity to come up with the nominee of their choice, regardless of the gender.
3- Each Party must adopt an internal Constitution
The Igad Revised Bridging Proposal provides that the revitalized TGoNU shall comprise of: 1-The Incumbent TGoNU(comprising of: the former GRSS; the former SPLM/A-IO (led by Gen. Taban Deng); and the Other Political Parties in TGoNU); 2- The SPLM/A-IO(led by Dr. Riek Machar); 3- The Former Detainees (FDs); 4- Other Political Parties (OPP) outside of the Incumbent TGoNU including Alliance, Umbrella and political parties participating as such at the HLRF; and 5- The South Sudan Opposition Alliance (SSOA).
Based on the different power sharing percentages the above parties and entities will finally agree on, they will jointly form the next TGoNU.
However, given the history of the ARCSS being revitalized now, the author would like to suggest radical reforms to the Bridging Proposal in order to avoid potential controversies over power sharing.
The suggestions, if adopted, shall also protect the revitalized ARCSS from abuse and violations by one party, a faction of a party or any conspirator (s) seeking to frustrate implementations of the reforms provided for in the revitalized ARCSS.
The author is of the opinion that providing for power-sharing percentages alone are not enough. Let each party or entity develop, adopt and deposit their internal Constitution or rules and regulations with JMEC and IGAD. The internal Constitution or rules and regulations should define the mode of decision making within each party on matters related to the revitalized ARCSS i.e. their procedure for membership and lose thereof, the procedure for nomination of their representatives to the next TGoNU, TNLA, etc.
Both at party or entity and alliance/coalition levels there must be internal Constitutions or rules and regulations defining the mode of decision making within each party on matters related to the revitalized ARCSS. This will ensure accountability and adherence to the Agreement.
The internal Constitutions or rules and regulations should be separate documents that Igad should on the technical aspect assist the parties to develop as soon as possible for the purposes of protecting the Agreement from violations. The documents shall still be valid for the purposes of the Agreement regardless of any eventuality such as the expected reunification of the SPLM.
The internal Constitutions or rules and regulations I am proposing should attach as well names of members in decision making positions within each party/entity and alliance, and define the organs/structures of each party.
For example, a document circulating online as Charter of the SSOA is not explicit on how the Alliance will go about matters related to the implementation of the ARCSS, including of power-sharing (nomination of their members to the revitalized TGoNU.)
Also, there is no document in the public domain, neither a constitution nor rules and regulations, guiding The Former Detainees FDs. I strongly believe the FDs do not have one. And that is dangerous for accountability, democracy and implementation of the very ARCSS being revitalized. In case some or all of them later fallout during the transitional period, no body, whether JMEC, TGoNU, or Igad would have a document upon which they could determine the validity of the internal actions of some or all of the FDs in relation to the revitalized ARCSS or the next TGoNU. This should be resolved now by making the FDs adopt and deposit with JMEC, Igad their internal constitution or rules and regulations defining their mode of decision-making on matters related to the revitalized ARCSS.
Again, for instance, Chapter 1 Article 6 (4) of the ARCSS being revitalized provides that “In the event that the post of the First Vice President falls vacant during the Transitional Period, for any reason, including mental infirmity or physical incapacity of the office holder, the replacement shall be nominated by the top leadership body of the South Sudan Armed Opposition as at the signing of this Agreement.” The South Sudan Armed Opposition here meant the SPLM/A-IO. Currently, circumstances have changed a lot, including switching of sides by members of the top SPLM-IO leadership since July 2016. This means it is very important for SPLM/A-IO under Machar and the Igad mediation to have the SPLM-IO under Machar come up with their up-to-date Political Bureau “top leadership” members list, as well as their internal constitution stipulating their mode of decision-making on matters of the revitalized ARCSS, etc. Those, just like with any party relevant to the implementation of the agreement, should be deposited with JMEC and Igad for ensuring accountability and adherence with the ARCSS.
On the other hand, for the purposes of the revitalized ARCSS, the Igad Revised Bridging Proposal provides that The Incumbent TGoNU is a one entity comprising of: the former GRSS; the former SPLM/A-IO (led by Gen. Taban Deng); and the Other Political Parties in TGoNU). So, this means power sharing percentages allocated to the TGoNU shall be shared among all the parties mentioned above. But how shall they as an entity be making decisions on matters related to the revitalized ARCSS? Their sizes also differ on the ground and in terms of influence. Shall they work by consensus or voting? And in what form? These are important questions for the life of the revitalized ARCSS. The incumbent TGoNU participating as one entity at the Talks, just like the rest of the parties, must adopt and deposit with JMEC and Igad an internal Constitution or rules and regulations defining their mode of decision making on matters related to the revitalized ARCSS i.e. their procedure for nomination of their representatives to the next TGoNU, TNLA, etc.
Moreover, unlike the Igad “Revised Bridging Proposal,” the Khartoum unveiled “Agreement on Outstanding Issues of Responsibility Sharing,” acknowledges the TGoNU without explicitly mentioning the different parties that comprise the TGoNU in the ongoing talks. This may be by mistake. However, it is significant that the proposal and the final agreement comes out clear on which parties constitutes the TGoNU as an entity in the revitalized ARCSS and the next TGoNU.
It is true that just like with other negotiated peace settlements—diplomacy, politics, sanctions or the threats thereof will play a role in compelling the South Sudanese parties to adhere to their obligations under the revitalized ARCSS, including working for the democratic reforms provided for in the agreement. But more is needed to reach there.
Adopting the above-mentioned recommendations and coming up with explicit provisions on the matters raised would lead to a smooth implementation of the parts of the agreement relevant to the topics discussed herein, and ultimately the success of the purpose of the revitalized ARCSS itself.
The concerns raised in this article are not just political matters. They are legal issues as well. And since the legal matters here under discussions shall mostly apply prospectively and not retroactively, the above-mentioned recommendations should be considered, the loopholes should be resolved now to avoid controversies the may lead to the obvious which is a total abrogation or significant violation of the revitalized ARCSS, thereby prolonging the suffering of the people of South Sudan and defeating democratization efforts once again.