By Roger Alfred Yoron Modi, 15th November 2020
It is a known fact that the ongoing National Dialogue initiated by President Salva Kiir in late 2016 continues to receive criticism from some parties to the conflict, some parties to the Revitalized Peace Agreement and some observers and members of the general public.
In this article, for the sake of the needed reforms and lasting peace in South Sudan, the author seeks to provide solutions and middle-ground for all the different sides: those who support the National Dialogue and those who continue to criticize it.
Since the author himself also criticized the National Dialogue in an opinion article ( https://paanluelwel.com/2017/02/07/president-kiirs-proposed-national-dialogue-is-inconsistent-with-the-igad-peace-agreement/ ) published in February 2017, he will be offering the solutions and middle ground here in light of the genuine concerns he raised in that article as a concerned citizen and an impartial observer, while taking current realities into consideration.
Here are three broad solutions and middle-ground for trust-building and success of the National Dialogue:
1- The Legal Status of the National Dialogue: Harmony with Existing Peace Processes
First, it should be noted that the proponents of the National Dialogue, including President Kiir, since late 2016, were of the stance that the National Dialogue was within the framework of the 2015 Agreement on the Resolution of the Conflict in South Sudan (ARCSS) which itself expired in 2018.
In his 2017 article mentioned above, the author rightly argued, among others, that the Republican (Presidential) Order NO.27/2016 for the formation of the National Dialogue Steering Committee which was grounded on Article 101 (j) of the Transitional Constitution of The Republic of South Sudan (TCRSS) instead of a provision that conforms with the ARCSS, made the Dialogue inconsistent with the ARCSS.
Under the terms of ARCISS, which ought to have prevailed over the TCRSS in the event of a conflict, the power to nominate, appoint and establish independent Commissions, interim and ad hoc Commissions and Committees could 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 gave 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.
Right now, with the ARCSS expired and there is the 2018 Revitalized Agreement (R-ARCSS) in force, not rectifying the issue of the legal status of the National Dialogue Steering Committee appointed under Article 101 (j) of the TCRSS which gave the President the power to appoint ad hoc commissions and committees show not only bad intention, but it is also in conflict with the R-ARCSS which ought to prevail over the TCRSS. For the R-RCSS provides that nomination and appointment of members of independent Commissions, interim and ad hoc Commissions and Committees be exercised by the President, the First Vice President, and the Four Vice Presidents through consultation and agreements in order to reach a mutual understanding and agreement in accordance with the R-ARCSS (see Article 1.9).
Therefore, the solution, including on inclusion should start by extending the National Dialogue, to continue going on as opposed to the current reports that it shall conclude this week.
Then, in the near future, complying with the abovementioned provisions of the R-ARCSS on the appointment of ad hoc committees, the National Dialogue Steering Committee should be restructured. That should also be done, take into consideration the nature of agreement that shall be possibly reached in the Rome Peace Process, in case there shall be one.
All these shall add to the legitimacy of the National Dialogue and its success. Running a Country goes beyond good intentions. Good intention and action have to be based in law, for example, right now, the Constitution and Peace Agreements.
The National Dialogue could then be welcomed within the provisions of the R-ARCSS on The Permanent Constitution-making Process, like Article 6.2 of the ARCSS which, inter alia, says, the Permanent Constitution-making Process shall be based on the principles of “…committing the people of South Sudan to peaceful resolution of national issues through dialogue, tolerance, accommodation and respect of others opinions.” And also Article 6.3 of the R-ARCSS which provides that the Reconstituted Transitional National Legislative Assembly shall enact a legislation to govern the constitutional making process. Here, a provision welcoming the National Dialogue resolutions could be included in the said legislation, especially resolutions that build on the R-ARCSS for the sake of lasting peace. However, to get positive results, R-ARCSS implementation should be taken seriously and timely, especially starting after the reported intention to update its implementation schedule is concluded.
Meanwhile, the fear of parties to the agreement who are seen as having narrow, selfish, tribal agenda shall automatically be addressed if the R-ACRSS provisions like on the review of the Political Parties Act, 2012 to ensure that it complies with international best practices for free and democratic registration of Political Parties is completed. Completed here means completing the enactment process stipulated in the R-ACSS. Hence, since the R-ARCSS says the Reviewed Political Parties Act shall permit open registration of Parties, some of the parties without national agenda and required membership shall disappear or amalgamate with others, thereby addressing the fear mentioned above and issues of few individuals taking advantage of armed conflicts to claim to be political parties just to gain positions through peace negotiations. While such parties shall remain parties within the already agreed peace agreements like the R-ARCSS, going forward, being a party in line with the Political Parties Act (reformed) is and should (shall) be a different thing altogether.
2- Getting the Targets and Objectives Right
Here, there the author would like to point out two concerns: the objectives of the National Dialogue and its stakeholders.
While announcing the National Dialogue in a State of the Nation Address in December 2016, he said one of the objectives of the National Dialogue was “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 said. Well, it is now 2020 and the realities are different. Things have changed. Therefore the objectives of the National Dialogue should be reviewed in light of those realities, including the ongoing peace processes (R-ARCSS and the Rome Process).
The second issue here is, while announcing the National Dialogue, President Kiir declared himself Patron of the National Dialogue on one hand and on the other proclaimed the government he was heading a stakeholder— all without mentioning who the other stakeholder(s) is (are) and what role will it (they) have in the Dialogue.
As can be recalled, at the time of declaring the National Dialogue, the Country was back to armed conflict after the incident of July 2016. And President’s Kiir’s initiative of the National Dialogue was not only rejected by the parties to the conflict but seen by a number of South Sudanese and other observers as an attempt to move away from the implementation of the 2015 ARCSS and side-line those with a different opinion.
For example, after the resumption of that conflict and about a month before President Kiir declared the National Dialogue, in an article published on NEWSWEEK in November, the then UN’s Secretary General 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.”
Those were the talks those days, even among a number of significant South Sudanese political and other actors.
And here the author would like to reiterate his opinion that for a genuine and inclusive National Dialogue, President Kiir, and the leaders heading the dialogue, together with the parties to the conflict and the Revitalized Agreement, should find consensus on the status of those (parties) participating, or may want to participate, or is being persuaded to join the National Dialogue. This, together with other issues mentioned in this article will go a long way into ensuring even the implementation of the resolutions of the National Dialogue.
This is also important given that, in his speech declaring the National Dialogue, President Kiir also said “The resolutions of the National Dialogue, once accepted, shall be binding on all the stakeholders.” So, declaring the government as of December 2016 a Stakeholder (something that has happened already), and going on with the Dialogue, despite there are critical South Sudanese voices involved in the process as individuals, institutions, communities or parties that are either pro or sometimes against the government, are all not enough without clearly defining/declaring all the stakeholders. Having the stakeholders all known and also having them know themselves now shall assist in the President’s points about Binding Resolutions, Credibility and Effectiveness of the National Dialogue.
3- Truth, Reconciliation and Healing
It is true that the R-ARCSS is not perfect, and building upon it, if done right, shall help South Sudan reconcile its people and achieve institutional and legal reforms, democracy and lasting peace.
For example, the R-RCSS provides for the establishment of Commission for Truth, Reconciliation and Healing (CTRH). And though the R-RCSS also says the (current) Committee for National Healing, Peace and Reconciliation (CNHPR) and the National Platform for Peace and Reconciliation shall transfer all their files, records and documentation to the CTRH, and also though the Agreement says 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, the R-ARCSS has “smartly” and unfortunately limited the functions of the CTRH to establishing “an accurate and impartial historical record of human rights violations, breaches of the rule of law and excessive abuses of power, committed by State and non-state actors from the date of signing” of the R-ARCSS to July 2005. Why only up to July 2005 only? Human rights violations, breaches of the rule of law and excessive abuses of power against the people of present-day South Sudan can be traced to over 60 years or centuries ago, including the past civil wars (Anya nya, Anya Nya 2, SPLA/M, etc) and before. The effects of those human rights violations on people, including at South Sudanese Communal levels and among the leaders themselves, have been clear on causing tensions and inciting recent and current conflicts in South Sudan, because reconciliation and healing were not done.
Though the Comprehensive Peace Agreement ( 2005 ) ignored the issue of Transitional Justice and Truth, it did provide that “the Parties agree to initiate a comprehensive process of national reconciliation and healing throughout the country as part of the peace building process.” And that “Its mechanisms and forms shall be worked out by the Government of National Unity.” Those provisions were incorporated into both the Interim National Constitution of The Sudan, 2005 and the Interim Constitution of Southern Sudan, 2005 though in different forms. However, still a “comprehensive process of national reconciliation and healing” has not happened: be it in South Sudan or Sudan.
In South Sudan, at Independence, the Transitional Constitution of the Republic of South Sudan (TCRSS), 2011, provided that All levels of government shall initiate a comprehensive process of national reconciliation and healing that shall promote national harmony, unity and peaceful co-existence among the people of South Sudan (see Article 36 (1)(b)). Up to now in 2020 a Comprehensive national reconciliation and healing has not happened and the result is continuing hatred, divisions and violence among South Sudanese, at various levels and in several forms.
Therefore, since the objectives and goals of the National Dialogue as mentioned by President Kiir in his December 2016 speech include to: end all forms of violence in the country, settle historical disputes and sources of conflict among communities and further national healing, peace and reconciliation and save the country from disintegration and usher in a new era of peace, stability and prosperity, it is important that Truth, Reconciliation and Healing be extended beyond 2005 stipulated in the R-ARCSS.
This means, those leading or are involved in the National Dialogue, together with the other parties that are not part of it should work out a mechanism that shall extend the mandate and functions of the Commission for Truth, Reconciliation and Healing (CTRH) to include establishing an accurate and impartial historical record of human rights violations, breaches of the rule of law and excessive abuses of power, committed by State and non-state actors against South (thern) Sudanese from the 18th Century or before, up-to the present.
It is very unfortunate that some Countries that caused or contributed to causing grave human rights abuses against South (thern) Sudanese for some narrow selfish interests during the various struggles for South Sudan Independence do not want South Sudanese to know themselves and their true history, that is why they have been influencing South Sudan peace negotiations not to look back beyond 2005 for South Sudanese to be able to trace and resolve the major factors that continue to contribute to troubles, divisions, hate and violence among South Sudanese.
Those countries should know that South Sudanese are very good people and are ready to start fresh relations with any Country in the World, despite any bad history.
In conclusion, the author would like to reiterate that let President Kiir and the leaders heading the dialogue, together with the parties to the conflict and the Revitalized Agreement, as well as the Civil Society, agree to extend the National Dialogue beyond its tentative date of conclusion this week, and also later find consensus on the above-mentioned three broad solutions and middle ground.
As the President, Kiir should not allow few individual leaders currently involved in the National Dialogue run away with it in the name of establishing implementation mechanism while real genuine issues surrounding the status of the National Dialogue, its significance, credibility and effectiveness currently need to be addressed, before forming an implementation body. Some few individual leaders involved in the National Dialogue are trying to drag the Dialogue to directions that suit their personal political appetite and agenda rather than prioritizing lasting solutions to the conflict. Allowing them to succeed means allowing them to ruin President Kiir’s efforts and efforts of other genuine leaders for lasting peace in the Country. Through the National Dialogue, President Kiir actually has an opportunity to cement a good legacy, of moving a militarized and highly and historically aggrieved and divided people and communities to peace, reconciliation and healing, and a democratic South Sudan, based on the rule of law.
Given that the National Dialogue shall also be part of South Sudan’s history and the fact that it has been listening and archiving voices that criticize the dialogue, it is right and just that for the sake of the Country and his own legacy, President Kiir should take positive corrective actions on criticisms that are convincing, like the several issues mentioned in this article. Doing so shall build trust between him and his supporters on one hand and the critics and their supporters on the other and or leave critics with nothing serious or more to criticize, thereby contributing to peace, legitimacy and effectiveness of the National Dialogue.