By Roger Alfred Yoron Modi 3rd February 2022
This article, looks at this week’s Third Cycle of South Sudan’s Universal Periodic Review UPR at the United Nations Human Rights Council, Geneva, Switzerland: National Report; Compilation of UN Information; and Summary of Stakeholders’ Information, with a focus on a few issues and a summary regarding submissions on South Sudan’s Scope of International Obligations and Cooperation with International Human Rights Mechanisms and Bodies, and South Sudan’s Human Rights Framework.
To enhance understanding of issues here, for the benefit of the reader, the following are relevant provisions of the Transitional Constitution of the Republic of South Sudan, 2011:
Article 9(3) provides that all rights and freedoms enshrined in international human rights treaties, covenants and instruments ratified or acceded to by the Republic of South Sudan shall be an integral part of “this Bill of Rights” (The Bill of Rights are specified in Part Two of the Constitution: from Article 9 to 34). And Article 9(4) says “This Bill of Rights shall be upheld by the Supreme Court and other competent courts and monitored by the Human Rights Commission.”
In Article 43, the Transitional Constitution says Foreign policy of the Republic of South Sudan shall serve the national interest and shall be conducted independently and transparently with the view to achieving the following:
(a) promotion of international cooperation, specially within the United Nations family, African Union and other international and regional organizations, for the purposes of consolidating universal peace and security, respect for international law, treaty obligations and fostering a just world economic order.
(c) enhancement of respect for human rights and fundamental freedoms in regional and international fora.
(d) promotion of dialogue among civilizations and establishment of international order based on justice and common human destiny.
(e) respect for international law and treaty obligations, as well as the seeking of the peaceful settlement of international disputes by negotiation, mediation, conciliation, arbitration and adjudication.
(h) combating international and trans-national organized crime, piracy and terrorism.
Article 57 provides that the National Legislative Assembly shall exercise functions including: ratify international treaties, conventions and agreements. While Article 101(p) provides that the President shall perform functions including: direct and supervise foreign policy and ratify treaties and international agreements with the approval of the National Legislative Assembly.
South Sudan’s Scope of International Obligations and Cooperation with International Human Rights Mechanisms and Bodies
Here, the Compilation of UN Information, Report of the Office of the United Nations High Commissioner for Human Rights, report prepared pursuant to Human Rights Council resolutions 5/1 and 16/21, taking into consideration the periodicity of the universal periodic review, is a compilation of information contained in reports of treaty bodies and special procedures and other relevant United Nations documents, presented in a summarized manner owing to wordlimit constraints, according to the submission.
On South Sudan’s Scope of International Obligations and Cooperation with International Human Rights Mechanisms and Bodies, mentioned in the report included the following:
1- The Commission on Human Rights in South Sudan recommended that South Sudan sign, accede to or ratify international and regional human rights instruments, notably the International Convention for the Protection of All Persons from Enforced Disappearance and the Rome Statute of the International Criminal Court.
2- The United Nations Mission in South Sudan (UNMISS) recommended that the Government conclude the process of accession to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, and their Optional Protocols, by transmitting to the Secretary-General the respective instruments of accession.
3- The United Nations country team recommended that South Sudan ratify the Optional Protocol to the Convention on the Rights of the Child on a communications procedure, the Convention on the Rights of Persons with Disabilities, and the United Nations Convention against Transnational Organized Crime and the Protocols thereto.
4- The Office of the United Nations High Commissioner for Refugees (UNHCR) recommended that South Sudan accede to the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness.
Meanwhile, on Ratification and Compliance with International and Regional Instruments Recommendations, the National Report submitted by South Sudan partly reads, “On ratification of the international and regional instruments, the Government has since the last UPR review, submitted to the National Legislative Assembly, for accession, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of Persons with Disabilities, Protocol on African Charter on the Rights of Women in Africa and the African Charter on the Welfare of the Child. The ratified conventions include Convention on Stateless Persons and Convention Relating to the Status of Refuges and its Optional Protocol. However, it is worth mentioning that the political crisis in the country, have impeded on the ratification process.”
Well, in June 2019 UNMISS and the Office of the United Nations High Commissioner for Human Rights welcomed the ratification of those international human rights covenants in South Sudan, the International Covenant on Civil and Political Rights (ICCPR) as well as the International Covenant on Economic, Social and Cultural Rights (ICESCR) and their respective First Optional Protocols without reservations.
South Sudan’s Human Rights Framework
On South Sudan’s Human Rights Framework, in the Report of the Office of the United Nations High Commissioner for Human Rights, the following are included:
The Secretary-General and United Nations country team reported that between 8 and 11 May 2021, the President had dissolved the Transitional National Legislative Assembly and the Council of States and reconstituted the 400-member Assembly as a 550-member parliament.
The Commission on Human Rights in South Sudan noted that, following the establishment in February 2020 of the Revitalized Transitional Government of National Unity of South Sudan, prolonged contestation over power-sharing, including at the State and local levels, had left vast areas of South Sudan in a governance vacuum. Legislative functions had ground to a halt, since parties had failed to agree on the reconstitution of the Transitional National Legislature. Consequently, several critical pieces of legislation necessary for the implementation of reforms were pending, including the Constitutional Amendment Bill to rectify anomalies in the Constitutional Amendment Act of 2020, which would convert the Revitalized Agreement to the Transitional Constitution.
The Commission reported that signatories and non-signatories to the Revitalized Agreement had continued to violate the permanent ceasefire, the Cessation of Hostilities Agreement and the Rome Resolution thereon. Hostilities have involved the National Salvation Front, a non-signatory to the Revitalized Agreement; the Sudan People’s Liberation Movement-Army in Opposition; and the South Sudan People’s Defence Forces.
On South Sudan’s Human Rights Framework, the Summary of Stakeholders’ submissions on South Sudan included the following:
JS7 reported that most of the institutions tasked to implement the 12 September 2018 Revitalised Agreement of the Resolution of Conflict in South Sudan had been formed and were functional. Implementation of the Revitalised Agreement remained slow, selective, and inconsistent. Although the Revitalised Agreement mandated the Government to initiate and oversee a Permanent Constitution-making process during the twenty-four months of the transitional period, this provision had not been implemented. Knowledge of the Agreement was low among South Sudanese, especially at the sub-national level.
JS7 recommended that the Government allocate enough resources for implementation of the Revitalised Agreement without further delay, and engage citizens in the implementation processes, including reconciliation, constitutional development and monitoring of the peace agreement.
AI reported that South Sudan’s national human rights commission was mandated to monitor the rights and freedoms in the Bill of Rights and investigate complaints of human rights violations, but the President had not appointed a Chairperson, so the commission was not fully established.
AI noted that crimes under international law had not been incorporated into South Sudanese law, and the 2015 Penal Code Amendment Bill on these crimes was still under parliamentary discussion.
AI recommended that South Sudan amend the definitions of crimes under international law currently incorporated in the Amendment Bill in conformity with international law and include provisions on torture, enforced disappearance, command responsibility, and the non-applicability of amnesties and immunities, and amend the Penal Code to ensure conformity with human rights obligations.
During the session on Monday, the Vice President of the Human Rights Council announced that the report of the review will be prepared by members of Troika: the representatives of Côte d’Ivoire, France, and the republic of Korea, and that in accordance with the procedure implemented since 2015. The full report, including the summary section will be circulated by email on Friday February 11th 2022, he said.
While the process is wide and other parts shall be looked into in Part 2 and other parts of this article, the following is Justice Ruben Madol Arol, the Minister of Justice and Constitutional Affairs reply during the conclusion of the session on Monday:
“On behalf of my government, I want to appreciate the interaction we have got from all who had participated in this UPR Review. And we are impressed with the amount of recommendations given by the speakers to the report that we are presenting today. And also the good will of the expression of South Sudan successfully getting its position based on this report in a positive light.
A number of important issues have come up and concerns have been made and the government of South Sudan is willing to engage in every area of concern that have been highlighted in this function. I can only reiterate that the agenda for the government of South Sudan is to implement the Revitalized Agreement in letter and spirit and on time and we expect that it’s the agenda for the partners to the government of South Sudan at the international and regional level and therefore that should be our focus.
The government of South Sudan is ready and willing to improve the general condition of human rights that has been brought about by the war situation that developed in our Country and in fact the reason that South Sudanese struggled to be recognized a national sovereignty in order to have the citizens of South Sudan enjoy all the human rights that they had lacked in their past. And the Agreement gives us the chance to correct the image and move forward to have a democratic country where everybody has their rights guaranteed and protected and so from that perspective we are willing to engage with whoever is rendering us support, advice, technical assistance and capacity building so as to achieve that goal. I also would want to promise that all these issues will be subject of discussion by the government of South Sudan in the council of ministers and in the parliament. And we hope in the next phase we will be in a position to have a much more improved report to give to the international community on particular matters of human rights.”
In the opening of the article, I deliberately cited the Transitional Constitution of the Republic of South Sudan, 2011 without referring to any amendment so as to be clear, just for that purpose and reasons that even the amendments done are not on those parts I cited.
On the issue regarding the incorporation of the Revitalized Agreement on the Resolution of the Conflict in South Sudan into the Transitional Constitution, as mentioned here-above, included in the Report of the Office of the United Nations High Commissioner for Human Rights is that “several critical pieces of legislation necessary for the implementation of reforms were pending, including the Constitutional Amendment Bill to rectify anomalies in the Constitutional Amendment Act of 2020, which would convert the Revitalized Agreement to the Transitional Constitution.”
Meanwhile, regarding that, the National Report submitted by the government of South Sudan reads as follows: “Article 8.2 of the Revitalized Agreement on the Resolution of the Conflict in the Republic of South Sudan (R-ARCSS), 2018, provides that the Agreement shall be fully incorporated into the Transitional Constitution, 2011(as amended). On this basis, the Government made amendment to the Constitution by incorporating the provisions of the Agreement into the Constitution. The Constitution Amendment Bill is currently before the Transitional National Legislature for adoption.”
Well, while the references made to articles of the Transitional Constitution (as amended 2020) during the various appointments were clear regarding the incorporation done, and earlier complains as well as later ones regarding rectifying “anomalies” in the Constitutional Amendment Act of 2020, and other announcements on the same, time and again it is about transparency, timely making information available, as a matter of public’s right of access to information, and to allow for their participation on those public issues.
Roger Alfred Yoron Modi, a South Sudanese journalist, is the author of the book Freedom of Expression and Media Laws in South Sudan. Roger is also the Producer and Host of The Weekly Review: Making Sense of News and Relevant Topics.
For more, keep in touch with this his website rogeryoronmodi.com