By Roger Alfred Yoron Modi, 7th October 2019
Since 2015, South Sudan government and Opposition groups have been on a deadlock over the move of the former to partition the Country into 28 States (and now 32 States). The Oppositions initially argued that the government action was unconstitutional and a violation of the then 2015 Agreement on the Resolution of the Conflict in South Sudan (ARCSS) which was reached on the basis of the 10 States sanctioned by South Sudan Transitional Constitution.
The disagreement over the number of States continued during the 2016 short-lived transitional unity government and since the resumption of armed conflict in July of that year. The issue of the States number (increase) was also one of the contentious issues during the peace talks last year (ARCSS revitalization) and hence the September 2018 Revitalized Agreement on the Resolution of the Conflict in South Sudan R-ARCSS provides for procedures/avenues to settle the matter during the pre-transitional period (prior to the formation of the Revitalized Transitional Government of National Unity R-TGoNU). Despite the extension of the pre-transitional period in May this year and the fact that the R-TGoNU is slated to be formed in November, a settlement on the States number is yet to be reached.
The problems with the increase of States
Oppositions argued that creation of more states by President Salva Kiir government violated (encroached on) ancestral lands/tribal boundaries of some tribes. Radio Tamazuj had earlier made analysis that the then proposal by President Kiir to divide the country into 28 states would make his own ethnic group (Dinka aka Jieng) the prevailing ethnic majority in administrative areas covering 42% of the country, according to maps of the proposal.
“By comparison, in the current situation, the Dinka are the prevailing ethnic group in only 26 counties, approximately 25% of total land area, according to maps available…” Radio Tamazuj added.
It is worth pointing out that the idea to increase the number of States first originated from the opposition, the SPLM/A-IO under Dr Riek Machar. The SPLM/A-IO proposed the creation of 21 states in South Sudan.
According to the analysis by Radio Tamazuj, the proposal for the creation of 21 states by Machar similarly creates advantages for his own ethnic group, the Nuer.
“Dr Machar’s proposal would consequently result in an increase in predominance of his own ethnic group from 15% of total land area to 19% of total area,” the analysis added.
There are several other tribes that felt their land have been given to other tribes through the creation of the new states.
While the states have been increased to 32 from 28 since, the increase only affected mostly the Upper Nile Region and slightly the Equatoria. There’s however no analysis to cite as far as ethnic advantage or domination is concerned given the new circumstance (32 States).
R-ARCSS Provisions vs States Number and Tribal Boundaries
The R-ARCSS provided 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 says “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.
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 stipulates.
While the R-ARCSS provided that the Technical Boundary Committee TBC shall consist of “suitable number of experts drawn” from IGAD and Troika Countries, a Statement from IGAD said that the TBC which released its report in late March was comprised of experts from Uganda, Somalia, Kenya, Ethiopia and Djibouti and was chaired by Mr. Ali Gragandi Naeem from Sudan.
“Presenting the report to the IGAD Special Envoy (Ismail Wais), the TBC Chairperson confirmed that the report was adopted by consensus pursuant to article 22.214.171.124 of the R-ARCSS,” Sudan Tribune quoted a Statement from Igad as saying.
The main problem is that the public have not seen the report of the TBC and there is no provision in the Agreement saying the report shall or should be made public.
Furthermore, Article 126.96.36.199 of the R-ARCSS 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.”
However, the big question is how would any tribe know whether or not the TBC report has been violated when the report itself has not been released to the public and there is no provision in the Agreement saying it should or shall be released to the public?
As for the Independent Boundary Commission IBC, it consists of Fifteen Members: Five (5) members nominated by Incumbent TGoNU, Five (5) members nominated by opposition groups: two (2) from SPLM/A-IO, one (1) from SSOA, one (1) from FDs, and one (1) from OPP and Five (5) “highly experienced C5 members” nominated by the Member States of the African Union High-Level Ad Hoc Committee on South Sudan from South Africa, Nigeria, Rwanda, Algeria and Chad.
An unofficial document circulating online says the IBC has recommended a return to 10 States in South Sudan.
On their part, last month, President Kiir and Dr Machar agreed to form a committee to look into the final report of the IBC, number of states and their boundaries to come up with findings suitable for both parties and the people of South Sudan, Sudan Tribune reported. So far, however, it remains unknown to the public if the committee has been formed and made progress.
Solutions to the deadlock on the number of states and Federalism
A return to ten (10) States is no longer viable given how long the new states have been in operation and how much the people on the ground embraced them and the subsystems that came with them. The shape of the conflict shall quickly change for the worse once the states are withdrawn and the Country is returned to the former ten (10) States.
Meanwhile, maintaining the government’s Thirty-Two (32) States or adopting SPLM/A-IO Twenty One 21 would all be unfair and problematic. That is why a new, reasonable and neutral number is needed.
I urge the committee promised by President Kiir and Dr Machar, the IBC and all the parties to the R-ARCSS to settle for either 27, 30, 36 or 39 States, to be divided equally among the former three regions of Bahr el Gazal, Equatoria and Upper Nile. While doing that, let the report of the TBC be released to the public and let the new number of states the Committees shall settle on take into account the TBC report which aimed 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.
However, with respect to Federalism, I urge that the former ten States be transformed into Regions under a Federal system, preferably towards the end of the transitional period (during Permanent Constitution-Making Process) when their institutions are strengthened in terms of powers, infrastructure and resources while the states within each of those ten regions shall remain as states.
In case that fails, my second proposal is that, let the Federal system be based on States, whichever number (27, 30, 39 etc) when they are strengthened in terms of powers, infrastructure and resources towards the end of the transitional period (during Permanent Constitution-Making Process.)
Dividing a huge Country like South Sudan into just three regions under a Federal system would be problematic because of the size (619,745 km2) of the Country and the number of tribes (over 64). Resorting to 3 regions would create a lot of congestion and cannot actually well qualify as devolution of powers and resources. Going for Federalism based on States or new regions based on the former ten states would integrate and unite the Country and also relax the fear that some regions like Equatoria are slippery and might want to secede whenever it obtains the chance.
Further, though the unity of the people at the level of the former three regions is vital for the unity of the Country, that unity should be created through informal settings, cultural activities, political conferences etc and not by reverting to the former three regions.
For R-ARCSS provides for initiation of a Federal system “that reflects the character” of South Sudan, not that that reflects the character of the former three regions.