By Roger Alfred Yoron Modi, 27th June 2018
The latest IGAD “Revised Bridging Proposal” on the High-Level Revitalization Forum HLRF of the 2015 Agreement on the Resolution of the Conflict in the Republic of South Sudan ARCSS has made a number of provisions (references) on the questions of Federalism and the controversial issue of States number in the youngest nation.
On Federalism, the proposal provides that governance during the next Transitional Period shall be guided by the principles and considerations including “the urgency of responding effectively to the popular demand for a Federal system of government by:
· Accelerating the devolution of power and resources to local levels of government; and,
· Undertaking effective consultations and preparations for adopting a Federal system for South Sudan in the Permanent Constitution.”
It further acknowledges that ARCSS recognizes that “a federal system of government is a popular demand of the people of South Sudan, and that there is a need, consequently, to (a) reflect this demand by way of devolution of more power and resources to lower levels of government, and (b) initiate preparations for the adoption of a federal and democratic system of government within the Permanent Constitution-making process.”
The proposal added that “accordingly, the Ministry for Federal Affairs shall be strengthened in order that it may carry out… [its] mandate to support the consideration of the appropriate models of federalism for South Sudan, and to contribute to the processes for adopting a federal system of government within the envisaged permanent Constitution of South Sudan.”
Federalism: A Historical background and Related Matters in South Sudan
When the armed conflict erupted in South Sudan, the Peace and Security Council of the African Union AU, at its 411th meeting held at the level of Heads of State and Government, in Banjul, The Gambia, on 30 December 2013 responded by mandating the establishment of the Commission of Inquiry on South Sudan also known as the AUCISS.
The Terms of Reference ToR detailed in the Concept Note Relating to the Establishment of the AUCISS per the AUPSC Communiqué related to the subject of this article were to, inter alia:
· Establish the immediate and remote causes of the conflict
· Compile information on institutions and process or lack thereof that may have aided or aggravated the conflict resulting in violations of human rights and other abuses
· […] examine ways on how to move the country forward in terms of unity, cooperation and sustainable development.
· Make recommendations based on the investigation on: appropriate mechanisms to prevent a recurrence of the conflict, mechanisms to promote national healing and cohesiveness, particularly focusing on the need for all South Sudanese communities to live together in peace; and modalities for nation building, specifically focused on building of a functional political order, democratic institutions and post-conflict reconstruction, etc.
In their findings, the AUCISS noted that:
· “…claims for self-determination, expressed as federalism were made by South Sudanese as early as 1955 as Sudan prepared to receive the instruments of independence from the Anglo-Egyptian administration, which was achieved on January 1, 1956…”
· “…the failure to achieve internal self-determination in a united Sudan through a federal arrangement had led to the first civil war, which ended in 1972 with the signing of the Addis Ababa Agreement, which granted southerners autonomy and self-rule. Its abrogation in 1983 would lead to the second war, which ended with the signing of the CPA in 2005…”
On the system of government, the AUCISS “found that the Transitional Constitution creates three levels of government — national, state and local government — and that both national and state government enjoy a sphere of exclusive executive and legislative powers, while judicial power is national. The Commission concluded that the devolved system of government in South Sudan has both unitary and federal elements, and that it is essentially a ‘hybrid system’, in part because states lack competence in judicial power and that national executive possesses limited control over states. This is expressed in the fact that the President is empowered to remove elected governors, and to dissolve state legislative assemblies.”
“With respect to the third tier of government, it was established that functionally, local government are linked to states, which have the constitutional mandate to create and finance local government units. States receive a share of 15% of national revenue while the national government retains 85%.
“The Commission (AUCISS) also established that there is disconnect between the legal framework on decentralization and practice, and that several aspects of decentralization have not been implemented or are dysfunctional. Practice distorts the delicate balance of power between national and state government in the sense that national government intervenes in the functioning of state governments in ways that appear to lack constitutional sanction. Equally, the relationship between states and local government is problematic: states exercise de facto control over local government and provisions on election of certain local government officials have not been respected. Local government, which is a key center of service delivery, faces serious financial, human and physical resource constraints, resulting in lack of capacity to deliver services.”
The AUCISS recommended that in view of existing gaps between the constitutional text and its implementation, political actors should commit to give full effect to TCRSS, 2011 (during the transitional period) until a new one is adopted.
It further recommended that “consideration should be given to repealing provisions that empower the President to remove elected governors, to dismiss or suspend legislatures and to summon or prorogue the National Assembly. These changes can be effected through minimal reforms pending the outcome of the constitutional review process.”
On the question of Federalism in contemporary South Sudan, the AUCISS found that “demands for federalism in sections of society is essentially about service delivery, guarantees for autonomy to decide on local priorities, and management of diversity (in the context of fear of domination).”
Those who oppose federalism, according to the AUCISS, argued that, if adopted, federalism could divide South Sudanese. The Commission noted that the majority of those in this category who expressed themselves prefer that the decentralized system established by the TCRSS, 2011 be retained in a future constitutional dispensation.
“They emphasize that focus should be on working the current system with a view to fostering development and delivering services to the people: Things should remain as they are. Because you need more time to educate people to know for instance different languages … so you need resources … the communities can [then] choose which one is better when you train them,” partly read the final report of the AUCISS, presumably quoting a source as well.
“What emerged from the views gathered by the Commission, as well as commentary on the subject is that the issue has been politicized, and that the debate appears to be coloured by historical narratives of exclusion and inclusion. Equally, there is misunderstanding in a significant portion of the population as to what federalism entails. Some, including those who advocated for change, appeared unaware that the current system in South Sudan includes elements of federalism,” the AUCISS report added.
“There are those who believe that federalism means separate existence or segregation, which evokes painful historical antecedents for some. One respondent told the Commission that in the federal arrangement he envisions, ‘we want to be left to live alone, us in our area and the xx in theirs’ referring to two ethnic communities. Some of those advocating for ‘segregation’ told the Commission that inter-ethnic relations were irreparably damaged by atrocities committed during the conflict, and that it would be difficult to co-exist side by side. For the Commission, these sentiments underscore the need for genuine reconciliation at the communal level, irrespective of the system of government adopted.”
The AUCISS report observed that “it is however notable that despite this divide among ordinary South Sudanese, there is emerging political consensus among the negotiating parties in the IGAD-led mediation process that a new constitutional dispensation to be established should be based on principles of federalism taking into account the context and the views of ordinary South Sudanese.”
Though AUCISS process was “delinked” from the IGAD-led mediation, the South Sudanese parities and stakeholders including the government finally acknowledged in the August 2015 signed ARCSS that they are “cognizant that a Federal system of government is a popular demand of the people of South Sudan and of the need for the TGoNU to reflect this demand by way of devolution of more power and resources to lower levels of government, and to initiate that a federal and democratic system of governance that reflects the character of South Sudan and ensures unity in diversity be enacted during the permanent constitution making process.” (See ARCSS Preamble)
Further, ARCSS in Chapter Six Article 1(2), set the parameters of the permanent Constitution to be made to include initiating of a federal democratic system of government that guarantees, amongst others, the supremacy of the people of South Sudan, good governance, constitutionalism, rule of law and human rights.
It provided that the TNLA shall within the first six (6) months of [the] Transitional Period enact a legislation to govern the constitutional making process, but this remains far from reality as there is no such a legislation up to date.
Also, Chapter Six, Article 8 of the ARCSS provided that: “The TGoNU shall review the ongoing permanent Constitution-making process and reconstitute the National Constitutional Review Commission (NCRC). In order to ensure quality of participation and inclusiveness in the reformulated Constitution review process, the composition of the reconstituted NCRC shall include but not limited to representatives of the TGoNU, Political Parties, faith-based groups, women’s bloc, youth, ethnic minorities, representatives of the private sector, CSO groups, academics and other professionals. The process of appointment shall be as defined in the reviewed and enacted legislation governing the constitution-making process.”
ARCSS enshrined that the NCRC shall be appointed by the Executive after adequate consultation with all key stakeholders including but not limited to the Political Parties, Civil Society Organizations and Faith-Based groups for their views to prepare a Draft Constitutional Text, and that the Commission shall, inter alia, carry out wide consultation with the people and conduct civic education and prepare the Draft Constitutional Text.
At added that the permanent constitution shall be completed not later than eighteen (18) months following the establishment of the Transitional Period and shall be in place to guide the Elections toward the end of the Transition.
In fact, were it not for the resumption of conflict in July 2016 and significant lack of implementation of the provisions of ARCSS, these subjects of Federalism and Permanent Constitution Making would have been by now largely or entirely resolved and put to rest.
On the Number of States
On the controversial issue of number of States, the “Bridging Proposal” provides for that “immediately upon the signing of this Agreement, the revitalized TGoNU shall, taking into account the decision of 55th Extra-Ordinary Session of the IGAD Council of Ministers held in Addis Ababa, Ethiopia, January 30-31, 2016, appoint an Independent, ad hoc Boundary Commission (IBC) whose function shall be to review the establishment of new states and their boundaries and to make recommendations for addressing the consequences of these changes.”
After the signing of the ARCSS in 2015, government increased the number of States in South Sudan from (10) to thirty-two (32). “Even though this was deemed to be in violation of the ARCSS, it was agreed that an inclusive mechanism be established to determine the number and boundary of States during the Transitional Period until the matter is resolved within the Permanent Constitution-making process,” the Bridging Proposal noted.
The Proposal further provides that the IBC to be formed shall consist of 15 persons “with the necessary skills and knowledge to undertake its functions: 12 South Sudanese, at least five of whom shall be women, and 3 representatives of the regional guarantors of the Agreement. The IBC shall be chaired by a Judge of the Supreme Court of South Sudan.”
It says that the IBC shall complete its work within 180 days, and shall make recommendations on adjustments to be made to the number and boundary of States during the Transitional Period. Thereafter, it added, the IBC shall be dissolved. The proposal also enshrined that the 180 days tenure of the IBC may be extended with “good cause.”
“To enhance its efficiency, the IBC shall establish three teams, each consisting of five representatives, to be deployed at locations it will designate,” the latest proposal says, stipulating that the recommendations of the IBC shall be binding.
Observations and Recommendations
It is worth noting that the ongoing HLRF is not a new peace process but an attempt to give new life to the 2015 ARCSS which remains largely unimplemented mainly due to the resumption of armed conflict in July 2016.
It was in its response to the conflict and new circumstances that emerged in South Sudan that the IGAD Assembly of Heads of State and Government in a Communiqué on 12, June 2017 at its 31st Extra-Ordinary Session mandated the IGAD Council of Ministers “to urgently convene a High Level Revitalization Forum (HLRF) of the parties to the ARCSS including estranged groups to discuss concrete measures, to restore permanent ceasefire, to full implementation of the Peace Agreement and to develop a revised and realistic timeline and implementation schedule towards democratic election at the end of the Transition Period.”
Today Wednesday, pursuant to the IGAD Communiqué of last week, the South Sudan parties signed a deal in Sudan dubbed “Khartoum Declaration of Agreement between Parties of the Conflict of South Sudan.”
The Khartoum Declaration, inter alia, says “An Agreement on the ‘Revised Bridging Proposal’ shall be concluded as soon as possible and before closing the current Khartoum Round of Talks.”
However, there is still a chance for the South Sudanese parties to reach a comprehensive peace agreement within the next few days.
For the same Communiqué which mandated President Omar Hassan Al-Bashir to facilitate a second round of face-to-face discussion between President Salva Kiir and SPLM/A-IO leader Dr. Riek Machar within two weeks, to: “a. discuss and resolve the outstanding issues on governance and security arrangements including measures proposed in the revised Bridging Proposal of the IGAD Council of Ministers; and b. discuss measures to be taken to rehabilitate the South Sudanese economy through bilateral cooperation between the Republic of South Sudan and the Republic of Sudan,” also decided that the Sudanese President shall inform President Uhuru Kenyatta of Kenya of the outcome of the discussion between the parties.
The Igad Assembly of Heads of State and Government also decided that President Uhuru will facilitate a third round of face-to-face discussion between President Kiir and Dr Machar in Nairobi “to facilitate the revitalization process and report the outcome and way forward to the upcoming Ordinary Session of the IGAD Assembly of Heads of State and Government.”
So, despite all these, and the (limited?) mandate of the HLRF itself, there is still a chance for the South Sudanese parties to engage honestly and constructively so as to come up with a comprehensive peace agreement through the framework of the IGAD-led process.
This point is even reflected in the last week’s Communiqué that called upon the South Sudanese Parties and Stakeholders “to make further compromises and expeditiously conclude the HLRF process.”
Back on the issue of Federalism, it is worth recalling that in their joint Position on the HLRF in February, the 9 parties/movements known as South Sudan Opposition Alliance SSOA called for adoption of “a FEDERAL system of governance during the [next] Transitional period through effective division of powers and resources between the federal, state, and local government.” The SSOA argued that “other aspects of federalism that require detailed study shall be tackled by the National Constitutional Conference (NCC) as stipulated in [the] TCRSS (Transitional Constitution of the Republic of South Sudan) 2011 and ARCSS 2015 that shall be convened during the Transitional Period.”
On their part also, the SPLM/A-IO has been at the forefront calling for the adoption of Federalism in South Sudan for years now.
Therefore, in an effort to improve on the IGAD Bridging Proposal with the view of finding radical solutions to the South Sudan crises and issues raised in this article, the author hereby makes the following observations and recommendations:
1- Article 7 of the Bridging Proposal on the “The Question of the System of Government, Federalism” should be improved. Specifically, Article 7(1) which, based on the ARCSS, provides that “…there is a need to reflect… [the popular] demand [of Federalism] by way of devolution of more power and resources to lower levels of government.” Here, the parties and stakeholders should agree and insert a provision specifying the “power and resources” to be devolved to lower levels of government. For example, it’s been indicated that States receive a share of 15% of national revenue while the national government retains 85%. The author suggests that an affirmative action making a substantial rise (of at least 40%) in the allocation of national revenue to the lower level of government be provided for in the Bridging Proposal. The resources should be directed toward building institutions and human resource (personnel) in the states so that they are able to deliver to meet the needs of their people without failing the devolved system. Wide discussions over the matters should be held during the Permanent Constitution Making Process.
2- Also should be improved is Article 7 (2) of the Bridging Proposal which says “the Ministry for Federal Affairs shall be strengthened in order that it may carry out…[its] mandate to support the consideration of the appropriate models of federalism for South Sudan, and to contribute to the processes for adopting a federal system of government within the envisaged permanent Constitution of South Sudan.” Here, it should be stipulated how the ministry shall be “strengthened” and by who. And is it in terms of allocation of a budget? A list of specific mandate? These should be provided for explicitly in the final Agreement.
3- On the number of States, Article 5 (5) (1) of the Bridging Proposal provides that the revitalized TGoNU shall appoint an Independent, ad hoc Boundary Commission (IBC) to review the establishment of new states and their boundaries and to make recommendations for addressing the consequences of these changes. However, the Proposal failed to specify which organ of the revitalized TGoNU shall make the appointment. Is it the Council of Ministers, the Legislature of the revitalized TGoNU, or both? And how, through what procedure? These should be explicitly provided for in the Bridging Proposal (Agreement).
4- Also, Article 5 (5) (3) of the proposal provides that the 180 days tenure of the IBC “may be extended with good cause” without mentioning which body (organ) holds the authority to make that extension. Is it the President? Is it in consultation with one or all the three Vice Presidents? Is it the Council of Ministers, the Legislature of the revitalized TGoNU, or both? And how? The Bridging Proposal (Agreement) should make explicit provisos on these.
Since the ARCSS being revitalized set the parameters of the Permanent Constitution to include initiating of a federal democratic system of government and the Bridging Proposal has acknowledged that, taking note of ARCSS that a federal system of government is a popular demand of the people of South Sudan, the author does not intend to open the matter for renegotiation.
Instead, the next government and all with good intentions should invest resources and the expertise to help enlighten South Sudanese on the different types of Federalism so that when the time comes for Permanent Constitution making the people will be able to actively participate and decide on the appropriate system of Federalism for the young nation.
A genuine reconciliation among communities is also key for South Sudanese to be able to move forward from the belief that federalism means “separate existence or segregation, which evokes painful historical antecedents.” There are provisions for such reconciliation in the current TCRSS
Finally, the author agrees with the view of AUCISS that “whether a system is denominated ‘federalism’ or ‘decentralization’ or ‘devolution’, it is the ‘content’ of the system (in relation to adequate devolution of resources, decision-making power and guarantees against undue interference in devolved units by the center) as well as commitment to the implementation of the constitutional text that matters.”