Articles (Opinion/Analysis)

Salient features of South Sudan latest peace deal

By Roger Alfred Yoron Modi, 20th September 2018

Last week, the government of South Sudan under President Salva Kiir, various armed and unarmed opposition groups and other parties, including the SPLM/A-IO led by Dr Riek Machar, signed a peace deal called Revitalised Agreement on the Resolution of the Conflict in the Republic of South Sudan R-ARCSS aimed at ending the civil war in the youngest nation.

The signing of the R-ARCSS is a result of the Igad-led revitalisation process of the 2015 Agreement on the Resolution of the Conflict in the Republic of South Sudan ARCSS which remains largely unimplemented due to the resumption of armed conflict in July 2016.

The R-ARCSS provides for the establishment of a Revitalised Transitional Government of National Unity (RTGoNU) whose term of office shall be thirty-six (36) months, commencing eight (8) months after signing of the R-ARSS (as of September 12) or on completion of redeployment of “necessary unified forces.”

The Agreement provides that Kiir shall continue as President of the Republic of South Sudan, and Dr Machar shall assume the position of the First Vice President of the Republic of South Sudan respectively.

According to the R-ARCSS, the RTGoNU shall comprise of five parties: 1-The Incumbent TGoNU, comprising of: the former GRSS; the former SPLM/A-IO (led by Gen. Taban Deng Gai); and the Other Political Parties in TGoNU and represented, as such, at the HLRF; 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).

The Executive of the RTGoNU

In addition to the President and the First Vice President, the R-ARCSS provides that there shall be four (04) Vice Presidents in the Republic of South Sudan, who shall be nominated as follows: 1- Vice President to be nominated by Incumbent TGoNU to oversee Economic Cluster; 2- Vice President to be nominated by SSOA to oversee Services Delivery Cluster; 3-Vice President to be nominated by Incumbent TGoNU to oversee Infrastructure Cluster; and 4- Vice President to be nominated by FDs, who shall be a woman, Gender and Youth Cluster.

The First Vice President shall oversee Governance Cluster. According to the Agreement, apart from the First Vice President, there shall be no hierarchy among the Vice Presidents and the ranking provided for in the Agreement is “for protocol purposes only.”

The Council of Ministers of the RTGoNU shall comprise thirty-five (35) Ministries: 20 Ministries for the Incumbent TGoNU: 09 Ministries for SPLM/A-IO: 03 Ministries for SSOA: 02 Ministries for FDs and 01 Ministry for OPP.

There shall also be 10 Deputy Ministers who shall be allocated as follows: Incumbent TGoNU: five (5) Deputy Ministers; SPLM/A-IO: three (3) Deputy Ministers; SSOA: one (1) Deputy Minister; OPP: one (1) Deputy Minister.

The Legislature of the RTGoNU

The R-ARCSS provides that The Transitional National Legislature (TNL) shall consist of the Transitional National Legislative Assembly (TNLA) and the Council of States.

The TNLA shall compose of fifty (550) members to be shared among the parties: Incumbent TGoNU: three hundred and thirty two (332) members; SPLM/A-IO: one hundred and twenty eight (128) members; SSOA: fifty (50) members; OPP: thirty (30) members; FDs: ten (10) members.

The R-ARCSS provides that “The Speaker of the TNLA shall be nominated by the Incumbent TGoNU. One Deputy Speaker shall be nominated by SPLM/A-IO; another, who shall be a woman, shall be nominated by the Incumbent TGoNU; and a third Deputy Speaker to be nominated by OPP.”

On the other hand, the Speaker of the Council of States shall be nominated by SPLM/A-IO, Deputy Speaker shall be nominated by Incumbent TGoNU, and shall be a woman, and another Deputy Speaker shall be nominated by SSOA, the Agreement says.

Power sharing at lower levels of Government

The R-ARCSS provides that the power-sharing ratio at State and local government levels shall be: Incumbent TGoNU: 55%; SPLM/A-IO: 27%; SSOA: 10%; OPP: 08%.

The Agreement says the positions that shall be shared are: Governors, Speakers of State Legislatures, State Councils of Ministers, State Legislatures, County Commissioners, and County Councils (if any).

On the Controversial issue of States Number

The 2015 ARCSS was signed on the basis of 10 states that existed per South Sudan’s Transitional Constitution. However, the government later increased the states to 28 and now 32, a move the opposition calls illegal and a violation of the Constitution and the ARCSS.

Now, the R-ARCSS provides that, within two weeks of the signing of the Revitalised ARCSS, the IGAD Executive Secretariat, taking into account the decision of the 55th Extra- Ordinary Session of the IGAD Council of Ministers held in Addis Ababa, Ethiopia, January 30-31, 2016, shall appoint an Independent Boundaries Commission (IBC) for the Republic of South Sudan.

“The function of the IBC shall be to consider the number of States of the Republic of South Sudan, their boundaries, the composition and restructuring of the Council of States and to make recommendations on the same,” says the Agreement, adding that the IBC shall complete its work within a maximum of ninety (90) days that shall not be extendable.

The Agreement provides that “in the unlikely event” of the IBC failing to make its final report before the end of its term, the IBC shall be automatically transformed on the 90th day of its term into Referendum Commission on Number and Boundaries of States (RCNBS) of the Republic of South Sudan.

“The referendum shall be conducted on the number and boundaries of States of the Republic of South Sudan; taking into account the positions advanced by the Parties. The question or set of questions that shall be posed in the referendum shall be the same for the entire country unless it is decided in the RCNBS that each State shall have different question or set of questions more understandable to the people,” says the Agreement.

On Tribal Boundaries

The Agreement, among others, provides that immediately upon the signing of the Revitalised ARCSS, the IGAD Mediation shall appoint a Technical Boundary Committee (TBC) to define and demarcate the tribal areas of South Sudan as they stood on 1 January 1956 and the tribal areas in dispute in the country. The IBC and RCNBS shall take full account of the report of the TBC “which shall form the basis for their decision and formulation of the question for the referendum,” the Agreement says.

“In the event that any tribe claims that the TBC report is violated, that tribe is entitled to resort within a maximum of two years of the alleged violation to arbitration and bring its case against the RTGoNU or any subsequent government of the Republic of South Sudan before the Permanent Court of Arbitration at The Hague. The RTGoNU or any subsequent government agrees to abide by the arbitration award and shall introduce any required state boundary rectifications,” the R-ARCSS provides.

The Judiciary of the RTGoNU

The R-ARCSS provides that there shall be established, during the Transitional Period, an independent, impartial and credible Constitutional Court, whose composition, functions and duties shall be regulated by law.

It says the Judiciary of South Sudan shall be independent and subscribe to the principle of separation of powers and the supremacy of the rule of law.

The R-ARCSS also provides for reforms of the judiciary, including but not be limited to the review of the Judiciary Act during the Transition; establishment of an ad hoc Judicial Reform Committee (JRC) to study and make recommendations to the Revitalised TGoNU for consideration.

The Agreement further enshrines that the Executive shall supervise and facilitate the reforms and reconstitutions of the Judicial Service Commission (JSC), paying particular attention to the mandate and appointments, to ensure the JSC independence and accountability.

Thereafter, according to the Agreement, the reconstituted JSC shall study and recommend appropriate judicial reforms and restructuring of the Judiciary during the Transitional Period.

Further Checks and Balances

According to the R-ARCSS, twenty-three (23) members of the Council shall make the quorum of the Council of Ministers provided that the ministers present include at least six (6) from the opposition.

Also, Article 1.14.9 of the Agreement provides that decisions in the reconstituted Transitional National Legislative Assembly TNLA on matters pertaining to the R-ARCSS shall be by consensus and failure to that, shall be by two thirds (2/3) majority of all the members.

Article 1.14.10 adds that Decisions in the TNLA on other matters not related to the R-ARCSS shall be by consensus and in lieu of that by simple majority.

In an opinion piece, one Duop Chack Wuol argued that, statistically, President Kiir has the number to deny any reform agenda he does not like or want.

“He [Kiir] can do it by instructing his parliamentarians not to vote for any bill that would limit his powers. The signed document, for example, proposes that the Transitional National Legislative Assembly (TNLA) will have 550 Members of Parliament (MPs). The revitalized text gave the incumbent TGoNU 332 MPs (60.4%), whereas 23.3% (128 MPs) will represent the SPLM-IO, 50 MPs (9.1%) allocated to SSOA, 5.5% (30 MPs to OPP, and 10 MPs (1.8%) are awarded to FDs. In the war of numbers, it is 60.4% vs. 39.6%. Meaning, the government MPs clearly outnumbered all opposition MPs combined,” Chack continued.

“It is strikingly a solemn misjudgment on the SPLM-IO’s part. It is worth noting that the government does not have a two-thirds majority in the TNLA — which would have been 366.7 MPs (66.7% to 33.3%) out of the proposed 550 MPs. This calculation has a +1 margin of error. In a logical sense, Kiir parliamentary bloc needs an additional 34.7 MPs to pass any law it wants. Remember, South Sudan is full of briefcase political parties. Most of these parties are not fighting for the people of South Sudan, they are fighting for themselves. For them, it is a war over positions and Kiir could still bribe 34.7 MPs from these self-serving parties to pass any law he wants.”

Permanent Ceasefire, Security Arrangements and building of a Nation Army

The R-ARCSS provides that the Permanent Ceasefire signed in the Khartoum Declaration of 27 June 2018, which came into effect on 1st July 2018, “shall be observed meticulously throughout the Republic of South Sudan to ensure sustainable peace, and facilitate the operationalization of the Transitional Security Arrangements and the voluntary repatriation, resettlement, rehabilitation and reintegration of returnees and Internally Displaced Persons (IDPs).”

It adds that the Parties shall, immediately upon signing, disseminate the provisions of the R-ARCSS to all forces, allies and affiliates under their command or influence to ensure compliance.

According to the R-ARCSS, Prisoners of War (PoWs) and detainees shall be released immediately under the supervision of the International Committee of the Red Cross and Crescent (ICRC).

The Parties also agree to ensure that all non-South Sudanese armed groups leave the country within the Pre-Transitional Period.

The R-ARCSS provides that all Parties agree to cease security forces recruitment and training of late recruits. 

The parties also agree to respect and ensure full compliance with international humanitarian law.

The R-ARCSS provides that a process of national healing and reconciliation shall commence at the beginning of the pre-transitional period and shall include all forces and affected people.

Article 2.2.1 of the R-ARCSS provides that “The Pre-Transitional Period shall start on D-Day and continue up to the completion of the training and redeployment of the necessary unified forces. However, training and redeployment of the necessary unified forces shall be completed within a period that shall not exceed eight (8) months. This provision prevails on any other contrary text.”

The R-ARCSS in Article 2.2.2 further provides that “The Parties agree to the disengagement and separation of their forces, which are in close proximity, and the assembly and cantonment of their forces within thirty (30) days of the signing of this Agreement to enable registration of personnel, weapons and equipment accountability, screening, re-organization and/or disarmament and demobilization. Forces in cantonment shall receive non-military logistical supplies including food, shelter and access to medical care.”

The R-ARCSS stipulates that during the Pre-Transitional Period, civilian areas including schools, service centers, occupied houses, IDP camps, protection of civilian sites, villages, churches, mosques, ritual centers and livelihood areas shall be immediately demilitarized.

Article of the R-ARCSS provides that “All forces shall be cantoned under the supervision of the current monitoring bodies at their present barracks and sites. However, cantoned forces shall be assembled in accessible areas and in a size of not less than a battalion.”

The Agreement further says “All forces shall be screened and classified according to known military criteria followed for the purposes of recruitment for the army, police, national security and other services. Ineligible individuals shall be referred to DDR [Disarmament, Demobilization and Re-Integration.]”

Article 2.2.9 states that “Training of the unified forces of the military, police and other security services shall start at the beginning of the Pre-Transitional Period according to the requirement of each force or service. Forces shall be trained together to ensure coherence and harmony.”

The R-ARCSS provides that on the completion of training the unified forces shall be redeployed at different levels and sizes (units, formations and commands) and that building of the national army, police, security and other forces shall be completed before the end of the Transitional Period.

The Agreement enshrines that the current monitoring and verification mechanism shall be restructured and reconstituted into the Ceasefire Transitional Security Arrangement, Monitoring and Verification Mechanism (CTSAMVM).

The Agreement says, the CTSAMVM, including the national monitors, shall be responsible for monitoring, verification, compliance and reporting directly to IGAD Council of Ministers and the reconstituted Joint Monitoring and Evaluation Commission (RJMEC) on the progress of the implementation of the Permanent Ceasefire and Transitional Security Arrangements and shall last for the duration of the Transitional Period.

Institutional and Legal Reforms

The R-ARCSS provides that during the Transitional Period, the Executive shall supervise and facilitate the reforms and reconstitutions of a number of Commissions and Institutions “paying particular attention to the mandate and appointments, to ensure their independence and accountability.”

The Commissions and Institutions include: Anti-Corruption Commission; Public Grievances Chamber; Fiscal, Financial Allocation and Monitoring Commission; National Audit Chamber (AC); Relief and Rehabilitation Commission; Peace Commission; National Bureau of Statistics; Human Rights Commission; Judicial Service Commission; Civil Service Commission; Land Commission; Electricity Corporation; Refugees Commission; South Sudan Broadcasting Corporation; National Petroleum and Gas Commission; National Bureau of Standards; Urban Water Corporation; Roads Authority; Commission for War-Wounded, Widows and Orphans; and Disarmament, Demobilization and Re-Integration Commission.

The R-ARCSS further provides that the Revitalised TGoNU shall review all national legislations in accordance with the provisions of the Agreement. The legislations shall include but will not be limited to the: Investment Promotion Act, 2009; Banking Act, 2010; Telecommunications and Postal Services Act, 2010; The Transport Act, 2008; The National Audit Chambers Act 2011; Anti-Corruption Commission Act 2009, Public Finance Management and Accountability Act 2011; Petroleum Act 2012; The Mining Act 2012; Petroleum Revenue Management Act 2012; National Pension Fund Act and National Revenue Authority Act 2017.

“Within twelve (12) months into the Transitional Period, the reconstituted NCAC [National Constitutional Amendment Committee] shall review the Non-Governmental Organizations Act, 2016, to ensure that such legislation complies with international best practice in regulating the activities of Non- Governmental Organizations (NGOs) in South Sudan,” the Agreement says.

Transitional Justice, Accountability, Reconciliation and Healing

The R-ARCSS provides that, upon establishment, the RTGoNU shall initiate legislation for the establishment of transitional justice institutions: The Commission for Truth, Reconciliation and Healing (CTRH); an independent hybrid judicial body, to be known as the Hybrid Court for South Sudan (HCSS); Compensation and Reparation Authority (CRA).

Following their establishment, the CTRH, HCSS and CRA shall independently promote the common objective of facilitating truth, reconciliation and healing, compensation and reparation in South Sudan, the Agreement says.

“Without prejudice to the administration of and access to justice, the CTRH shall inquire into all aspects of human rights violations and abuses, breaches of the rule of law and excessive abuses of power, committed against all persons in South Sudan by State, non-State actors, and or their agents and allies. In particular, the CTRH shall inquire into the circumstances, surrounding the aforementioned and any other connected or incidental matters. Such inquiry shall investigate, document and report on the course and causes of conflict and identify or review cut-off timeframes for the operations of the CTRH, as may be determined by legislation, this Agreement [R-ARCSS] or both. In that regard, the CTRH shall recommend processes for the full enjoyment by victims of the right to remedy, including by suggesting measures for reparations and compensation,” the R-ARCSS enshrines, among others.

According to Article of the R-ARCSS, the Hybrid Court for South Sudan (HCSS) shall be established by the African Union Commission “to investigate and where necessary” prosecute individuals bearing responsibility for violations of international law and/or applicable South Sudanese law, committed from 15th December 2013 through the end of the Transitional Period. This is a departure from Chapter Five, Article 3.1.1 of the ARCSS which says the Court shall be established by the African Union Commission to investigate and prosecute individuals bearing the responsibility for violations of international law and/or applicable South Sudanese law, committed from 15 December 2013 through the end of the Transitional Period. The introduction of the terms “where necessary” in Article of the R-ARCSS is new and may have huge implications in the delivery of justice.

On the other hand, the Agreement, just like the ARCSS, says the HCSS shall have jurisdiction with respect to the following crimes: Genocide; Crimes Against Humanity; War Crimes Other serious crimes under international law and relevant laws of the Republic of South Sudan including gender based crimes and sexual violence.

According to the R-ARCSS, the HCSS shall be independent and distinct from the national judiciary in its operations, and shall carry out its own investigations. The HCSS shall have primacy over any national courts of the Republic of South Sudan, the Agreement says.

On the Compensation and Reparation Authority  (CRA), the R-ARCSS says it shall provide material and financial support to citizens whose property was destroyed by the conflict and help them to rebuild their livelihoods “in accordance with a well-established criterion” by the Revitalised Transitional Government of National Unity.

Permanent Constitution and its Parameters

In the R-ACSSS, 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. Since gaining Independence in 2011, South Sudan continues to operate under a Transitional Constitution. 

One of the mandates of the incoming R-TGoNU is to oversee and ensure that the Permanent Constitution-making process is successfully carried out and completed before the end of the Transitional Period.

The Agreement provides that the RTGoNU shall initiate and oversee a Permanent Constitution-making Process during the Transitional Period which shall be based on the principles of: Supremacy of the People of South Sudan; Initiate[initiating] a Federal and democratic system of government that reflects the character of South Sudan in its various institutions taken together, guarantees good governance, constitutionalism, rule of law, human rights, gender equity and affirmative action; Guaranteeing peace and stability, national unity and territorial integrity of the Republic of South Sudan; Promoting people’s participation in the governance of the country through democratic, free and fair elections and the devolution of powers and resources to the states and counties; 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; Ensuring the provision of the basic needs of the people through the establishment of a framework for fair and equitable economic growth and access to national resources and services; Promoting and facilitating regional and international cooperation with South Sudan; Committing the people of South Sudan to peaceful resolution of national issues through dialogue, tolerance, accommodation and respect of others opinions.

According to the Agreement, the reconstituted Transitional National Legislative Assembly shall within the first six (6) months of Transitional Period enact a legislation to govern the constitutional making process. It says the permanent constitution shall be completed not later than twenty-four (24) months following the establishment of the Transitional Period and shall be in place to guide the elections toward the end of the Transition.

National Elections

The R-ARCSS provides that within six (6) months of its signing, the reconstituted National Constitutional Amendment Committee (NCAC) shall review the Political Parties Act, 2012, and ensure that the Act complies with international best practices for the free and democratic registration of Political Parties in South Sudan, and shall present a draft Bill to the National Legislative Assembly for adoption through the Minister of Justice and Constitutional Affairs. The Act shall permit the open registration of Parties, the Agreement adds.

“The Executive of the RTGoNU, in consultation with stakeholders, shall reconstitute the Political Parties Council not later than two (2) months after amendment of the Political Parties Act, and no later than four (4) months into the Transitional Period,” the R-ARCSS provides.

The Agreement provides that the National Elections Act, 2012 shall be amended to conform to the terms of the R-ARCSS, no later than seven (7) months after the commencement of the Transitional Period. It says no later than twelve (12) months after the commencement of the Transitional Period, the President, in consultation with the Parties to the R-ARCSS and with the approval of the Transitional National Legistlative Assembly, shall reconstitute a competent and impartial National Elections Commission (NEC), to conduct elections.

The R-ARCSS stipulates that sixty (60) days prior to the end of the Transitional Period, the National Elections Commission (NEC) shall organize elections in accordance with the provisions of the Permanent Constitution adopted pursuant to the R-ARCSS, and shall ensure that the outcome is broadly reflective of the will of the electorate.

The Agreement says within two (2) months of the adoption of the Permanent Constitution, the National Elections Act 2012, shall be amended to conform to the terms of the Permanent Constitution.

The Revitalised Transitional Government of National Unity, shall “urgently” address challenges of reconstruction, repatriation, resettlement, rehabilitation and reintegration of IDPs and returnees as critical factors affecting peacebuilding and elections, the R-ARCSS says.

Protection of Oil Fields

In the preamble of the R-ARCSS, the parties reaffirmed the commitments that they “have solemnly undertaken” in the Khartoum Declaration.

The Khartoum Declaration which was signed in late June provides, inter alia, that the Government of South Sudan in collaboration with the Government of Sudan shall immediately rehabilitate the oil fields in Unity State (Blocks 1, 2, and 4) and Tharjiath (Block 5A), “and others as would be agreed upon, for the resumption and the restoration of the previous levels of oil production.”

Article 5 of the Khartoum Declaration states that “The security the oil fields in Unity State (Blocks 1, 2, and 4) and Tharjiath (Block 5A) is the responsibility of all South Sudan citizens. If need be, the Government of South Sudan, while undertaking its security duties, shall work in this regard in collaboration and coordination with the Government of Sudan…All the outstanding issues related to the oil sector, particularly on the cost of oil field rehabilitation, shall be technically assessed and economically valued by the relevant authorities of South Sudan and Sudan respectively…”

Monitoring of the R-ARCSS

The R-ARCSS provides for reconstitution of the Joint Monitoring and Evaluation Commission (JMEC) established under the 2015 ARCSS to include representatives of the Parties to this Agreement, other South Sudanese stakeholders, and regional and international guarantors and partners of South Sudan.

The Revitalised JMEC shall, among others, be responsible for monitoring and overseeing the implementation of the Agreement and the mandate and tasks of the RTGoNU, including the adherence of the Parties to the agreed timelines and implementation schedule.

“In case of non-implementation of the mandate and tasks of the RTGoNU, or other serious deficiencies, the RJMEC shall recommend appropriate corrective action to the RTGoNU,” the Agreement provides.

Hope, Scepticism, Criticisms

In a statement attributable to the Spokesman for the UN Secretary-General, António Guterres commended the parties on “this step forward” and applauded regional and international efforts that led to the signing of the Agreement.

Guterres called on the signatories of the R-ARCSS to fully and inclusively implement the Agreement in letter and spirit.

On their part, the members of the Troika (the United Kingdom, United States, and Norway) have issued a statement acknowledging the R-ARCSS and expressing hope that “discussions will remain open to those who are not yet convinced of the sustainability” of the agreement.

“The Troika is committed to peace in South Sudan.  But in order to be convinced of the parties’ commitment, we will need to see a significant change in their approach.  This must include, but not be limited to: an end to violence and full humanitarian access; the release of political prisoners; and a real commitment to effective and accountable implementation, demonstrated by supporting robust security and enforcement mechanisms, checks on executive and majority power, and the transparent use of resources for the benefit of all South Sudanese,” the Troika statement partly read. “Without progress in these critical areas, we remain concerned the agreement will not deliver the peace that the people of South Sudan deserve.”

Also in an opinion last week, Brian Adeba, the Deputy Director of Policy at the Enough Project; and John Prendergast the Founding Director of the Enough Project and Co-Founder of The Sentry, argued that the Agreement has “significant shortcomings that could easily lead the country right back to full-scale war.”

“Today’s agreement is at its heart simply a crass division of the spoils between the rival factions with the biggest guns. It lacks meaningful checks and balances on executive overreach in a country in which the presidency already wields immense powers that are used mainly to loot the country’s resources and deploy extreme violence against opponents, whether military or civilian,” Adeba and Prendergast wrote.

Radio Tamazuj reported that the South Sudan Opposition Alliance SSOA is split between the faction that signed the R-ARCSS and those who have rejected the deal, insisting that it failed to address the root causes of the conflict in South Sudan. The SSOA faction that has signed the Agreement has called on the hold-out group to re-join them. 

A spokesman for the SPLM/A-IO Manawa Peter Gatkuoth said international support is vital if the new peace deal is to endure.

On his part, President Kiir said his government will take “unprecedented measures” and the Agreement will be implemented in letter and spirit.

“Our destiny is not determined in the corridors of power outside South Sudan, we have been capable of writing our own history and this time is not any different,” Kiir said in a statement last week.

“We welcome any scepticism because it will only fuel our resolve to consolidate peace in our country. Where we may be concerned is when sceptics become spoilers to the peace process just to prove their doom prophecies.”

Will this R-ARCSS finally end the armed conflict and usher in reforms in South Sudan?

Given the recent reports of continued violence even after the coming into force of the Agreement, it indeed remains to be seen if the R-ARCSS will hold and achieve its ultimate purpose.