Potential Causes and Consequences of South Sudan becoming a “Failed State”: Political and Legal Transformation from a Liberation Movement to a Democratic Government
(First published in the book Legal Transformation in Northern Africa and South Sudan, (Published in August 2015 by Eleven International Publishing) by Mehari Taddele Maru[1]
Abstract
Oxymoronically described as a ‘pre-failed’ state, the current crisis in South Sudan emanates from the failure of the South Sudan People’s Liberation Movement/Army (SPLM/A) to transform into a democratic party, and a state army respectively. Borne out of a post-independence political indulgence and inclination marked by the absence of any credible and meaningful political and constitutional reform, it was not surprising that the crisis in the SPLM erupted at the top echelon of political power. During the armed struggle, the glue that kept the various divergent forces of the SPLM/A intact was their common enemy in Khartoum and their aspiration for self-determination and independence. Once independence is achieved, unless transformed into a democratic political force, it becomes only a matter of time before liberation movements face internal divisions and even total rejection by their various supporters. Now, that glue is not strong enough to hold all divergent views together, and the SPLM/A is no longer a liberation movement. Unless liberation movements democratize and deliver on their independence they will increasingly face popular protests that could develop into a crisis within the ruling party. It was a matter of time that the SPLM/A leadership to face the mounting grievances of the population. Political instability has been accelerated by rampant corruption that is symptomatic of the country’s weak legislative, regulatory and enforcement mechanisms. Without military, legislative and other state institutions resistant to abuses and misuse by the political wing of the relevant liberation movement, autocratic elements of the liberation movement may take over power.
A prerequisite for a stable South Sudan, the author argues without a popularly vetted and democratically-endorsed permanent constitution, the transformation of South Sudan from a war-torn crisis-ridden country to a stable constitutional democracy will remain elusive forever. It also explains why the SPLM/A, the very political force expected and trusted by the people to deliver a democratic constitutional transformation of South Sudan, has effectively prevented South Sudan from achieving the same. Consequently, the author argues that constitutional transformation in South Sudan is unthinkable without the internal democratic reform of the SPLM/A.
Similarly, from the perspective of mediation process, the incumbent and rebel groups in South Sudan current crisis are not the legitimate and de jure representatives of the South Sudanese people. They should not even be considered as the de facto legitimacy bearers. Recognizing dialogue between the current two SPLM factions led by the incumbent President Salva Kiir and former Vice President Dr Riek Machar for the SPLM/A-In Opposition will not solve the problem sustainably, the inclusive dialogue among all forces in South Sudan that can address major national questions within and out side of SPLM is in order. By explaining why the Inter-Governmental Authority on Development (IGAD)-led mediation efforts and transitional processes should avoid over reliance on the warring parties represent the population affected by conflicts. Accordingly, by explaining the current IGAD-led mediation effort towards the establishment of transitional government of national unity, the author provides details on how an inclusive and comprehensive National Constitutive Dialogue (NCD) could help in constitutional making process delivers the necessary stability, legitimacy and constitutional democracy that the South Sudanese people who suffered for half a century.
1/ Introduction: a pre failed state?
Since 2010, commentators on South Sudan have discerned elements of a failed state even before its birth as the newest African nation. Exonymically applied, South Sudan was often described as a ‘pre-failed state’. Oxymoronic in content, the term connotes that South Sudan was a failed state even before it even became a state. How, one may ask, can a state fail before it becomes a state ‘proper’? Additionally, how does the state of affairs in South Sudan relate to the constitutional transformation of a liberation movement into a stable government?
With the situation prevailing in South Sudan beginning on 15 December 2013, South Sudan is increasingly being considered another failed state[2] in a region already plagued by state fragmentation and failure. The current crisis began when an armed confrontation erupted in the presidential palace in Juba, the centre of South Sudanese governmental authority.
Potentially disastrous for the entire region, the possibility of another state failure, in the form of South Sudan, has generated a worldwide outcry. The level of violence and intolerance has been a blow to millions of jubilant well-wishers who enthusiastically welcomed the birth of Africa’s newest sovereign nation on the Horn of Africa. The independence of South Sudan was achieved after tremendous sacrifices by the people of that country and more than 2 million casualties, with an equal number of uprooted and displaced civilians. Independence was overwhelmingly supported by the people of South Sudan with the hope of ending long years of war, unrest, neglect, persecution and underdevelopment bequeathed them by the Government of Sudan (GoS) and successive Sudanese governments since January 1956.[3]
Since 1955 South Sudan had been engaged in civil war with the GoS based in Khartoum, seeking decentralized governance under regional-autonomy within Sudan. After 17 years of war, South Sudan was granted autonomy under the Addis Ababa Agreement of 1972.[4] In 1983, the decentralized federal arrangement was abolished in favour of a šharī‘a-based highly centralized government in Khartoum.[5] This move triggered the increasing struggle for the total independence of South Sudan. The Intergovernmental Authority on Drought and Development (IGADD), the fore-runner to the Intergovernmental Authority on Development (IGAD), launched a peace initiative at its Addis Ababa summit of 7 September 1993 and a Peace Committee made up of the heads of state of Ethiopia, Eritrea, Uganda, and Kenya was established. The initiative promulgated the 1994 Declaration of Principles (DOP) that aimed to identify the essential elements necessary to a just and comprehensive peace settlement in order to end the civil war in Sudan. At the beginning of the millennium, constant pressure from the international community, particularly the United States, led to serious negotiations about peace under the direction of IGAD. After five weeks of consultation between the GoS and the Sudan People’s Liberation Movement (SPLM) in the Kenyan Machakos, the so-called Machakos Protocol was signed in 2002. Contrary to a widespread view, this document itself was not a peace agreement, but a landmark protocol about a ‘broader framework of governance. The peace treaty, the Comprehensive Peace Agreement (CPA)[6], was signed in early 2005. The CPA served as a blueprint for the Interim National Constitution of the Republic of Sudan.[7] Closely scrutinised by the Pan-African community, together with relevant international actors, a referendum was held in terms of the CPA on 9 July 2011.
At the time of independence, the hopes and wishes of the international community for South Sudan were far from what we are now witnessing. Thus, the current crisis in South Sudan amounts to a failure by the international community to ensure that this new state would develop into a democratic and stable polity.
Following the events of December 2013 regional organizations were quick to respond, with the IGAD taking the lead and dispatching a Ministerial Delegation to Juba on 19 December 2013. On the same day, the African Union (AU), through its Commission and Peace and Security Council, reiterated the AU’s wholehearted support for the efforts of the IGAD to facilitate political dialogue involving the people and leaders of South Sudan and commended the timely initiative taken by the Ethiopian government in its capacity as the Chair of IGAD. On 23 December 2013, the UN Security Council decided unanimously to double the size of the UN peacekeeping force in South Sudan by sending 5,500 more peacekeepers to protect civilians against the increasing violence in the country. Currently there are some 6,700 UN peacekeepers and 670 police officers in South Sudan.
2/ Constitutional Transformation: Starting off on the wrong foot
The legacy inherited by the people and government of South Sudan was the non-existence of democratic constitutional governance. As a new nation, South Sudan needed a constitutional order that could overcome the legacy of unconstitutional governance. The constitutional transformation in South Sudan began with the CPA that required an interim arrangement under the 2005 Interim Constitution of Southern Sudan. Following its declaration of independence in July 2011, South Sudan began the preparation of a Transitional Constitution under a technical committee.[8] Accordingly, a National Constitutional Review Commission was established and began its work on 24 January 2012 to prepare a new draft constitution that would be presented to a constitutional conference and the legislature through the President.[9] So far, South Sudan has failed to draft a permanent constitution, install an elected government and establish a properly constituted governance structure and political space. So, what is preventing South Sudan from achieving a viable system of constitutional governance? An analysis of the main causes of the current crisis in South Sudan furnishes the answer to this fundamental question. Without a popularly vetted and democratically-endorsed permanent constitution, the transformation of South Sudan from a war-torn crisis-ridden country to a stable constitutional democracy will remain forever elusive. It also explains why the SPLM, the very political force expected and trusted by the people to deliver a democratic constitutional transformation of South Sudan, has effectively prevented South Sudan from achieving the same. Consequently, constitutional transformation in South Sudan is unthinkable without the internal democratic reform of the SPLM/A.
3/ Triggers, Accelerators and Causes of the current Crisis
Triggered by a confrontation between army officers loyal to President Salva Kiir and disgruntled soldiers in the presidential palace, the crisis has deteriorated into civil war. While the AU and IGAD have characterized the situation as a ‘crisis’,[10] President Kiir claims that the confrontation constituted a coup attempt.[11] The president then ordered the arrest of several former ministers and veteran leaders of the SPLM serving in his cabinet, including the Vice President, Rick Machar, Pagan Amum, Oyayi Deng, Deng Alor, John Luk Jok, Majak D’Agoot, Taban Deng, Kosti Manibe, Gier Chuang, Peter Adwok, Alfred Lado, Cirino Hiting, and Chol Tong.[12] From an undisclosed location, the fugitive former Vice-President Machar announced that no one had attempted a coup, and accused the President of employing state power for the illegal purpose of his dictatorial disposition to silence dissent within the ruling party, the SPLM.[13]
To be sure, the tension within the SPLM has been brewing for some time. Since the middle of last year, schisms within the SPLM have become public. In July 2013, in what the public considered as an autocratic, and in some aspects an unconstitutional, move, President Kiir dismissed the entire South Sudanese cabinet and two state governors elected by the public. The dismissal from government and suspension of key SPLM figures was regarded as an attempt to silence President Kiir’s critics and strip them of all public functions, a decision that was ill-considered. On 14 December 2013, a meeting of the National Liberation Council, the top leadership of the SPLM brought about the latter’s final rupture.[14]
Although President Kiir is a Dinka and former Vice-president Machar is a Nuer, the perception that the current conflict in South Sudan is an ethnic one between the Dinka and Nuer people has little if anything to do with the real underlying causes of the current crisis. Several ministers and officials of Dinka origins are among those arrested. However, perception matters more than reality in the public political arena. Accelerating the crisis through easily exploitable ethnic markers, in the form of particularly the Dinka and the Nuer, is an exercise being employed for political gains within the party.[15] With thousands reportedly killed, and tens of thousands displaced along ethnic lines, South Sudan is on the brink of a civil war.[16] Moreover, after so many years of guerrilla war against the north, a warrior culture has been inculcated in South Sudan. This perhaps explains why reports about the current political violence in Juba and Unity and Jonglei States are so frightening. Equally disturbing was the undemocratic and brutal manner in which organizational differences within the ruling SPLM were handled; thus triggering mutiny against its top leadership.
4/ From a Liberation Movement to a Democratic Government: the Will-Capability Gap
Similar in many ways to the crises that newly decolonized African states faced five decades ago, the current crisis in South Sudan indicates the end of the happy old days of independence, and rising ushering the challenges of state and nation building. Endowed with natural resource, particularly oil, South Sudan could easily provide its population with human security, including basic public services such as law and order and utilities. Nevertheless, South Sudan, after its liberation struggle and independence, has been at war with itself and its neighbor, Sudan. As a result, the state is not able to economically sustain its activities due to the decline in income from oil exports as a result of multiple shut-downs of the pipeline. With weak regulatory and enforcement mechanisms, corruption and public perception about corruption has passed the tipping point where the majority of South Sudanese believes and acts as if corruption and clan despotism is normal practice.[17] Public offices and posts in the government are used as rackets for corruption and the accumulation of private wealth. Many report that two categories of people make money in South Sudan: government officials and foreigners (investors from other countries and expatriate workers in international companies and organizations).[18] Sectarian politics and bad governance; diminished legitimacy and unconstitutional rule by a fragmented elite, have reduced the independence struggle and its associated hopes for a prosperous, peaceful and democratic South Sudan to an empty shell. South Sudanese people who fought and paid dearly with their life and blood are living in perpetual fear, frequent displacement and life of poverty. In spite of the fact that SPLM/A has been the father of South Sudan and its independence, the biggest threat to the future viability of South Sudan state remains the SPLM/A. A testament to political immaturity, self-serving leadership, and the SPLM’s inability to handle differences within its leadership indicates the challenges facing South Sudan.
Devoid of ideological drive and strong organizational structure, SPLM/A’s “glue” remains the glory of the past struggle for independence, and the perceived threat posed by Khartoum. In the absence of ideological and structural factors and strings holding the SPLM/A together, the military wing influences the political decisions of the country. Failing to replace the glue of the past with a commonly shared vision to build a nation state, the strings holding SPLM/A is being held together by power and money. Power and corruption, in the short-term, have kept the regime intact. Vying for more power and money, rival groups have emerged. Inhibiting any meaningful reform, clean officials, citizens and foreigners have either been forced to leave the country or have simply become resigned to corrupt practices. Living on its past legacies without a genuine effort to gain new sources of legitimacy through democracy and service delivery, President Salva Kiir’s grand strategy is to prove that he is ‘the good cop’ holding the SPLM/A together and without his leadership, South Sudan will fall into a deeper crisis. Now, with the current schism within the SPLM/A and violent conflict in the country, this strategy is bankrupt.
Effective in paying lip service, the South Sudanese leadership lacks not only the capacity, but also mainly the willingness to transform. The political leadership, will and organizational capacity required during an independence struggle, in the form of the capacity to mobilize the public towards the popular goal of independence by defeating a common oppressive enemy, differs from the leadership, will and capacity essential for nation and state building. While the former requires unity of purpose to achieve independence, the latter requires democratic mechanisms for effectively addressing the critical questions and managing differing opinions of the public. Differences and divergent views subjugated to the sole and commonly shared public goal of independence invariably emerge soon after the ‘honeymoon’ period of independence is over. The time for externalizing all problems, and outward looking orientation, should be replaced by internalization of problems and introspection. In the case of South Sudan, this period saw the end of credulous popular support and trusting obedience to the leadership of the SPLM/A.
In a newly liberated country like South Sudan, the liberation movement, the armed forces and the state should merge to become an entity, unless the political leadership takes a deliberate decision to ensure the necessary separation through constitutional transformation. Consequently, the crisis within the SPLM leadership immediately turned into a state-wide governmental problem. The root cause of the current crisis resides in the reluctance of the SPLM to transform itself into a (civil) democratic political party, fit to govern post-independent South Sudan. Investments in the reform of state institutions, including its military wing, the SPLA, fell short of success due to its excessive focus on building capacity rather than changing the political behaviour of the SPLM. While there were programmes on Security Sector Reform, they failed to change the behaviour of the state and its institutions. The SPLM’s leadership was not merely unable, but also unwilling, to take responsibility for its duties and actions as the main force in control of South Sudan.
There is no line distinguishing between the SPLM and the government. The SPLA gets its instructions more from the SPLM top leadership than from constitutional bodies such as the parliament and the cabinet. Regulatory institutions, including practices and enforcement, such as border and customs control, immigration, criminal justice administration (including prosecutors, police, and prisons), need to be built from nothing. Oversight by law-makers currently remains a mere formality. The legislative body lacks the power and the independence to oversee the overall political and constitutional accountability, and budgetary duties of the executive. For practical purposes, the judicial bodies are almost non-existent. The judicial review by the adjudicator concerning complaints about the decisions and actions of the state and security institutions is absent. While the security sector is politically supervised by the SPLM, the cabinet and the government do not exercise control over these sectors. The place of the law-maker (parliament), and the law adjudicator (judiciary) by an army could also be indicative of the extent to which the military is accountable. Officials in the security and military establishments regularly report to individuals and rarely appear in parliament or in the courts to report and present evidence when relevant cases arise. The state officials make use of the party (SPLM) to directly dictate that the armed forces (SPLA) should take sides in party politics. The army considers itself to be the vanguard of the party (SPLM) in the first place. In the same vein, the failure of the SPLA to reform itself into the armed forces of the state, or the people, has contributed to the current state of affairs. Therefore, a power struggle within the SPLM has easily becomes a government crisis.
Given that the SPLM served as a ‘big family tent’ for all South Sudanese groups seeking an independent country, the SPLM should have served as a coalition of political compromise and a force for cultural accommodation. The SPLM has been the rallying point and the sole source of legitimacy during the long-lasting period of the struggle for independence. After decades of war, one expected from the SPLM to bring about lasting peace and stability. During the armed struggle, the cohesive force of the various divergent interests was their common enemy in Khartoum, the GoS, and the aspiration of South Sudanese for self-determination and independence.
As is symptomatic of a liberation movement, the SPLM is inclined to assume, retain and maintain power in the name of its liberation struggle and instil fear of the (aforementioned) ‘enemy’. Obviously, the cohesive force of the former liberation movement has become porous. As in the case of other liberation movements in the past, the SPLM has remained entrenched in its revolutionary culture; even years after the armed struggle and even after it attained its political objectives. Quite typical for these former liberation movements finally holding political responsibility, one finds it legally difficult to espouse constitutional separation of powers among the various state organs. The SPLM, in particular, has failed to transform itself into a truly popular political movement on an equal footing with other political forces, especially those forces that were not originally part of the liberation struggle. With time, such a leadership phenomenon of liberation movements, turns into authoritarianism. Its primary victims usually emanate from within its own ranks and quite often from the highest levels of political leadership. The SPLM/A is fragmented along ethnic, religious and/or geographic lines. Accordingly, the political composition of South Sudan still faces the risk of being dragged into sectarian politics. In other words, the SPLM is the very source of instability. Within a short time, it seems very likely that the SPLM will lose the popular legitimacy it once enjoyed as the founder of the new nation. Thus, the SPLM will not manage to lead the country to democracy and stability. This development would be nothing new in the context of post independent African states’ liberation movements and their respective interdependence with the state, as is currently also obvious in Eritrea.[19]
5/ Democracy and Delivery: the Gap between Popular Legitimacy and Performance Legitimacy
As mentioned early, South Sudan has been described as a ‘pre-failed state’ due to the fact that the SPLM/A, has especially failed to attain performance legitimacy. A government comprising a national liberation movement, the SPLM/A, initially, albeit briefly, enjoyed high popular legitimacy. However, from the beginning it exhibited diminishing performance legitimacy due to a lack of genuine effort in the provision of basic public services and in the face of rampant corruption. While the government expenditure on education, health and infrastructure, accounts for less than 20%, the cost of defence and security accounts for about 45%.[20] The government’s weak performance in delivery has increasingly eroded the popular legitimacy it enjoyed during the struggle and during the brief interim and transitional period. Symptomatic of state failure, low delivery and legitimacy have been the causes, triggers, accelerators and consequences of human insecurity in the country. Seen as part of a continuum, both hard security in ensuring the physical safety of the population from harm, and soft security in terms of socio-economic problems, extreme poverty, corruption and other debilitating factors threaten the human security of the population. Soft security in the form of protection from risks to livelihood is a function of resilience, vulnerability, and responses to needs, demands and grievances by the population. Hard security, in contrast, refers to the state’s ability to effectively combat violence. Both are highly fragile in South Sudan. South Sudan has grave socio-economic problems linked to the increasing demographic pressure, poverty, social injustice, economic inequalities as well as grievances, violent crimes, sharp declines in the capacity of the state to maintain itself and achieve basic delivery of services. The increasing tendencies of the SPLM/A leadership towards an autocratic leadership style have led to systemic violations of people’s substantive rights by government authorities. Corruption is pervasive, and plays a critical role as a cause and consequence of political and military fragmentation. Political instability has been accelerated by rampant corruption that is symptomatic of the country’s weak legislative, regulatory and enforcement mechanisms. Corruption impacts on virtually every level of Government. Public office holders enjoy immunity in abusing their offices for personal benefit. In this context, profit making is widely used by SPLM officials.
All these are indicators of state failure. In addition, the SPLM/A and its leadership are increasingly losing the trust of the population and thus tarnishing and effectively sabotaging a democracy- based state-building endeavour. Deception, manipulation and repression have replaced the democratic dispensation and discourse. Above all, a constitutional mechanism of redressing political differences and grievances is totally absent. This absence indicates the failure of the SPLM/A to establish democratic constitutionalism that it apparently aspired to establish during its long and protracted armed struggle. The only remaining options for the leaders of the SPLM were to either reform or accuse each other for the failure to provide responsive and competent government, hence the crisis.
6/ Accommodation of Diversity in unity: Towards Progressive and Integrative Federalism
Once a peripheral urban region and victim of Khartoum (GOS) policies, after independence the government of South Sudan made Juba the center stage of South Sudan’s centralised policies.[21] Juba then adopted the same failed centralised implementation policies of Khartoum. Under the current leadership of the SPLM the rights of political and cultural minorities are highly marginalized. The conflicts over grazing land, water, and power among the various ethnic communities have been elevated into a deadly political struggle. A conglomeration of members of various ethnic groups in South Sudan, the SPLM/SPLA from time to time has been facing a political schism that has assumed ethnic dimensions and mobilization. Since independence, increasingly, the SPLM has been facing acute challenges in accommodating its diverse cultural communities. Currently, within the SPLM/A leadership, a minority group of people is exercising majority power. Consequently, opposition to the current President has also drawn limited and contested support among the minority non-Dinka communities. With more than 100 distinctive cultural and linguistic communities, South Sudan is a multicultural nation-in-the-making. In the twenty-first century, the era of human rights and globalization, building a nation state entails ensuring human security for the population. Sovereignty and use of force have limited uses for fostering nation building. Sovereignty reconceptualised as responsibility to ensure human security demands the use of limited force.[22] South Sudan could learn lessons from both the successes and failures of other countries, particularly its neighbours. South Sudan shares its border with seven countries including Kenya, Uganda, Democratic Republic of Congo, Central African Republic, Chad and Sudan. The current crisis has not only an impact on South Sudan’s internal matters, but also on the Horn of Africa region. Internally, the road ahead for South Sudan is either to democratize itself, similar to the South African transition, or become a prisoner of its own liberation movement as in the case of contemporary Eritrea. Without an accommodative and integrative governance structure, increasingly South Sudan will face serious challenges from its various ethno-cultural communities. With a constitutional democracy, accommodation of diversity and democratic institutions will provide the mechanism to handle differences without resorting to force and violence. Progressive federal arrangements that promote shared and/or self-rule for both central and regional states need to be considered in the development of the new constitutional making process.
7/ Democratic Civilian Control of the Army: SPLM and SPLA
Democratic constitutional transformation of all actors, especially the armed elements of the liberation movements are essential for a nation and for state building. Since the liberation struggle, the relationship between the political wing- SPLM and the military wing SPLA remain the same where constitutional accountability and democratic civilian control of the military is almost non-existent. While in peacetimes, the SPLM and the government is not in the direct influence of the SPLA, nevertheless, during crises and civil war, the government will increasingly fall under the direct influence of the SPLA. In a situation where offices/posts are stuck with huge economic interests of individuals, the probability of the military defending and actively involving in partisan politics of a country is high. Looking at SPLA leadership and their disrespect to the parliament and the judiciary, it is indicative that the military is prone to impose its will and act out of the purview of the state institutions. With the current crisis, the role of SPLA will also increase in politics. SPLA faces serious military elite fragmentations along ethnic and geographic markers. With the current crisis, SPLA will have daunting task to ensure the accommodation and reflection of societal diversity in South Sudan. Otherwise, SPLA will increasingly become prone to sectarian political crisis continues. A transition to a democratic constitutional system would require a radical transformation of all existing security apparatus including SPLA into professional and constitutional-ruled state army. Self-reliant in both security and development, interference from countries like Uganda would not be necessary.
8/ IGAD-led Mediation and National Constitutive Dialogue: Towards constitutional Making and Democratic State
For Inter-Governmental Authority on Development (IGAD) region, the human security implications of continuation of the current crisis in South Sudan could be frightening and not difficult to imagine. With a collapsed economy and rampant poverty, and import of subsistence food and other imports from Kenya and Uganda, frequent floods and failure to harvest during the forthcoming rainy season may led to famine and starvation. With a failed state in Somalia, very fragile regimes in Eritrea and Sudan, the Horn of Africa may face another state failure. With enmity between several states, South Sudan could become another proxy for Sudan and Uganda, and Eritrea and Ethiopia.[23] Countries and forces from distance places could also use such a failure for their various interests in the Nile or oil. In contrast, a stable South Sudan would contribute to a stable Horn of Africa and would have significant contribution to IGAD region. With stability, South Sudan could easily export and utilize its resources including oil for the human security of its citizens. Peace in South Sudan could facilitate trade and economic integration in the region. It would also relieve much needed resources to other conflict hotspots like Somalia.
Regional organizations were quick to respond with the IGAD taking the lead and dispatching a Ministerial Delegation to Juba on 19 December 2013. On the same day, the African Union, through its commission and Peace and Security, reiterated the AU’s wholehearted support to the efforts of the IGAD to facilitate political dialogue involving the people and leaders of South Sudan and commended the timely initiative taken by the Ethiopian government in its capacity as the current Chair of IGAD. The ministerial delegation, which was led by Dr Tedros Adhanom, Ethiopian Minister of Foreign Affairs, spent three days in Juba and was able to get the commitment of President Kiir to sit for political talks with his foes. Former Vice-president Machar was also quick to respond and declared his willingness to embark on unconditional dialogue for a peaceful political settlement. Despite difficulty of proving the success of prevention, IGAD, AU, UN, US, EU, Norway and UK and others have swiftly responded to the crisis. Authorized by the UN Security Council under Resolution 2155 (2014), IGAD and the AU to deploy regional stabilization and protection force of 2000 troops under the leadership of IGAD with close coordination with AU and under UNMISS. The UNSC has further announced it may consider sanctions on the warring parties and has enhanced the UNMISS mandate to peace enforcement with 12,500 troops and more 1323 police. An Ethiopian former UNISFA Force Commander has been also recently appointed to head the revamped UNMISS.[24]
Composed of mediators from Ethiopia (Amb Seyoum Mesfin), Kenya (Gen, Lazaro Sumbeiywo) and Sudan (Gen Mohammed Ahmed El Dabi) in the presence of heads of IGAD, AU, IGAD Partners Forum, China, EU, the Troika (US, UK and Norway), the IGAD-led mediation involves high level political leadership including shuttle diplomacy and extra-ordinary summits of ministers and heads of state and government of IGAD.[25] So far the IGAD-led mediation has faced three major challenges; 1) lack of sincere commitment and political will on side of the two warring parities[26], particularly the incumbent group led by President Salva Kiir[27], and 2) Uganda’s unilateral military intervention in support President Salva Kiir, and 3) the ongoing hostility between South Sudan and Sudan. Uganda has repeatedly pointed out that its forces will withdraw only when IGAD sends its forces on the ground. With mounting pressure against the Ugandan forces that intervened in South Sudan, President Salva Kiir was forced to request President Musevini of Uganda to withdraw the forces. It is reported that when President Musevini requested President Kiir if he will be able to defend himself, he responded in the negative, provoking President Musevini to refuse to withdraw his forces.[28] The US, EU and IGAD as well as AU has repeatedly requested and warned Uganda to withdraw its forces. Now, for it seems that either President Kiir will act under the instruction and duress of President Musevini or demand the withdrawal, increasing the rift between the two.
The IGAD roadmap for South Sudan requires the establishment of transitional government of national unity (TGNU) within before August 2014.[29] The establishment of TGNU will follow a broad based stakeholders consultations including the two warring groups, former detainees, other political parties, the CSOs and faith based leaders.
Requiring inclusive approach for the dialogue and transitional process, the IGAD-led mediation has granted all the power to the stakeholders to decide the procedure and substance of the dialogue and the transitional process. This would avoid a common mistake committed by the international community. Mediation efforts and transitional processes over relies on warring parties represent the population affected by conflicts. Similarly, the incumbent and rebel groups in South Sudan current crisis are not the legitimate and de jure representatives of the South Sudanese people. They should not even be considered as the de facto legitimacy bearers. Recognizing dialogue between the current two SPLM factions led by the incumbent President Salva Kiir and former Vice President Dr Riek Machar for the SPLM/A-In Opposition will not solve the problem sustainably, the inclusive dialogue among all forces in South Sudan that can address major national questions within and out side of SPLM is in order.
Stability and legitimacy should be pursued together without sacrificing legitimacy for the sake of stability. Mediations need to bring various pockets of legitimacy mainly political parties, traditional chiefs and leaders of various ethnic and religious groups, representatives of internally displaced people (IDP) and refugees as well as the diaspora. For power sharing formula through some form of representation of all ethnic groups constitutes vital source of legitimacy and stability in the country. Such unfavorable circumstances require adoption of some non-ideal positions and approaches such as the inclusion of ethnic and religious representatives with the vision and plan to move through time from sectarian representation to democratic citizenry. Only if the dialogue is reflective of the hopes and fears of all segments of the society that the national constitutive dialogue in South Sudan may enjoy a popular legitimacy serving as the constituent assembly.
On the positive note, the first of these consultations has begun on 6 June in Addis Ababa in the form of symposium.[30] The symposiums need to constitute a National Constitutive Dialogue (NCD) that could be considered as the sole locus of legitimacy and sovereignty until a free and fair election is conducted under a new constitution that could be drafted under the National Constitutive Dialogue. Such National Constitutive Dialogue may have seven major functions: to end the nation-level crises, build some legitimacy for transitional government, ensure semblance of stability, draft a comprehensive democratic constitution and conduct referendum on it, conduct free, fair and peaceful election, and begin nation building, and saw the seeds of state building. In the short-term, the end state of the transitional process should be to bring all-important political actors together to agree on a transitional roadmap, that forms an interim transitional coalition government. A constitutional drafting commission comprising respected South Sudanese personalities and African experts could be formed as part of the transitional roadmap. The drafting of the constitution should begin with identification of the constitutional issues. It should raise the major national questions including the place of SPLAM/A, democratic constitutionalism, type and structure of state and government, power devolution and decentralization, level playing field for political forces, minority rights, accommodation of ethnic and religious diversities, allocation and use of resources, foreign policy and relations with neighbouring countries particularly with Sudan, and constitutional making process. After adoption of the draft constitution by a grand conference composed of representatives of the various forces in the society, as a contract among the South Sudanese (not between the people and the state), the constitution should be presented for ratification by popular referendum. The Transitional Constitution (TC) of the Republic of South Sudan 2011 approved by the Southern Sudan Legislative Assembly, 7 July 2011 and came into effect on 9 July 2011. As per Articles 202/203 of the TC stipulates for a permanent constitution for South Sudan. The previous constitutional review in the interim and transitional process were exclusive and controlled by President Salva Kiir.[31] Thus, vital in reversing this trend is referendum on a new constitution that will be critical to ensure sustainable popular support for the process.[32] In order to avoid any security dilemma and impunity, a truth and reconciliation commission could be established.
The experiences of constitutive dialogues in Africa during decolonization and after the end of the Cold War need to be taken into account.[33] The negotiation to a transitional process should begin with ‘fenced’ approach in which various stakeholders could be relatively insulated from unnecessary influences of their constituents and foreign interests. Excessive exposure to the media and group think catering to constituency could inhibit free discussions, compromises and settlement of differences based on democratic citizenry. Previously, countries like Kenya[34] and Ethiopia[35] has faced such constituency-barriers that hindered compromises based on an open and democratic deliberations and paralyzed negotiated settlements due to delegates fear of their constituencies. Negotiations such as those in South Africa in 1990s that were insulated from constituent and other external obstructive interferences achieved in settlements.[36]
9/ Conclusions: An Opportunity for Political Transformation
If seized, the current crisis could be turned into an opportunity for political and constitutional transformation. Evidence indicates that the situation is dynamic, volatile and so dangerous that an external helping-hand is necessary to save the country from sliding into a civil war. In order to restore peace and order to South Sudan, such an assistance is crucial to build up confidence and calm the animosity among the conflicting parties. Dialogue between the current two factions led by the President and Vice President of the country will not solve the problem. Without the willingness of the SPLM to transform itself into a democratic political party, the current crisis will not be addressed peacefully. The various state institutions, specifically those expected to serve as ‘shock absorbers’ during such a crisis, like the judiciary, the parliament and the military, are either partisan and part of the crisis, or are seriously unable to deal with such a problem. Consequently, from a short term point of view, in the absence of relevant democratic institutions, elections could be the source of an increasing violence cycle. Without fundamental reforms of the South Sudanese state-structure and its political institutions, peace and security will remain elusive. At the end, for a truly comprehensive nation-building process in South Sudan, a democratic popularly ratified constitution will be vital. A short transitional process for vetting and re-establishing some degree of public trust and capability regarding the most vital democratic institutions of the country will be essential to move forward in solving the crisis. In seeking at least temporary stability, necessary for a peaceful and democratic South Sudan, particular attention should be paid to national constitutive dialogue. Such an inclusive constitutive dialogue endows, of course, a new constitution with the necessary legitimacy. In this regard, South Sudan would have an excellent opportunity to make use of the successes and failures of neighbouring countries, such as Ethiopia, Kenya, Uganda and Eritrea. This would require different concerted short-term and long-term efforts by the international and pan-African communities. Without concerted effort of the Pan-African and the international community, South Sudan could slip into another failed state in a region already plagued by state fragmentation and failure. The humanitarian implications of a total failure of the new state will be grisly to anticipate. All inter- and intra-national actors involved need to ensure that the political leadership of the SPLM and the military command of the SPLA are going to take reform of the state seriously. With robust unified pressure on all parties to the current crisis and strict monitoring and evaluation mechanisms backed by strong sanctions from the UNSC and the AU as well as the IGAD, a inclusive and comprehensive national constitutive dialogue could deliver the necessary stability, legitimacy and constitutional democracy that endures.
End Notes
[1] Dr Mehari Taddele Maru is adjunct assistant professor at Addis Ababa University, and a member of the AU High Level Advisory Group, and a specialist in peace and security, migration and law, public administration and management. This was published as a book chapter in 2016, link available at https://www.elevenpub.com/law/catalogus/legal-transformation-in-northern-africa-and-south-sudan-1
[2] In this article, state failure refers to the situation indicated in the Fund for Peace, Failed and Fragile State Index where South Sudan is ranked the fourth most fragile state following Somalia, Democratic Republic of Congo and Sudan, for detail see the Failed State Index Ranking-2013, available from http://ffp.statesindex.org/rankings-2013-sortable (accessed 12 June 2014). Due to the complex nature of the concept(s) of failed, collapsed or even disintegrated states, discussed at length elsewhere, no well established definition exists. A number of definitions have been suggested. See in detail H. Elliesie, Statehood and Constitution-Building in Somalia: Islamic Responses to a Failed State, in R. Grote & T. Röder, Constitutionalism in Islamic Countries between Upheaval and Continuity, Oxford 2012, pp. 553-581 (560 et seq. note 49).
[3] On 1 January 1956 – the date agreed between the Egyptian and British governments – Sudan became an independent sovereign state, ending its nearly 136-year union with Egypt and its 55-year occupation by Great Britain.
[4] See H. Elliesie, Quo Vadis bilād as-Sūdān? The Contemporary Framework for a National Interim Constitution, Recht in Afrika (2005), pp. 63-81 (pp. 64-65).
[5] In September 1983, former President Ǧa‘far Muḥammad an-Numayrī issued several decrees, known as the September Laws that made šarī‘a the law of the land. In November of the same year the People’s Assembly approved his presidential decree legislation; H. Elliesie et al., Different Approaches to Genocide Trials under National Jurisdiction on the African Continent: The Rwandan, Ethiopian and Sudanese Cases, Recht in Afrika (2009), pp. 21-67 (p. 44). See also M. Böckenförde, Die sudanesische Übergangsverfassung von 2005: Ein Modell zur Etablierung einer Koexistenz von islamischer und säkularer Rechtsordnung, in B. Krawietz & H. Reifeld (Hrsg.), Islam und Rechtsstaat zwischen Scharia und Säkularisierung, Berlin et al. 2008, pp. 87-98 (p. 89); C. Fluehr-Lobban, Islamic Law and the Society in the Sudan, London 1987, p. 51; O. Köndgen, Das islamische Strafrecht des Sudan: von seiner Einführung 1983 bis Juli 1992, Hamburg 1992, p. 40.
[6] The CPA consists of six protocols (Machakos Protocol, Protocol on Power Sharing, Protocol on Wealth Sharing, the Security Arrangement, the Protocol on the two States (Southern Kordufan and Blue Nile States), and the Abyei Protocol), a chapeau, and the Schedules on Implementation.
[7] M. Böckenförde, Quo Vadis Sudan? Sharī‘ah and Human Rights after the Secession of South Sudan, in R. Grote & T. Röder, Constitutionalism in Islamic Countries between Upheaval and Continuity, Oxford 2012, pp. 535-551 (p. 541); See H. Elliesie, Quo Vadis bilād as-Sūdān? The Contemporary Framework for a National Interim Constitution, Recht in Afrika (2005), pp. 63-81 (p. 65); H. Elliesie, Friedensprozess und Verfassungsentwicklung im Sudan, 38 Verfassung und Recht in Übersee 3 (2005), pp. 276-307 (p. 276 et seq.).
[8] The Republic of South Sudan, Presidential Decree No. 02/2011.
[9] The Republic of South Sudan, Presidential Decree No. 03/2012.
[10] The AU Peace and Security Council, The Peace and Security Council, Press Statement of the 410th Meeting on the situation on South Sudan, 24 December 2013, Addis Ababa, Ethiopia available from http://www.peaceau.org/en/article/press-statement-of-the-410th-meeting-of-the-peace-and-security-council (accessed 24 February 2014).
[11] Presidential press release on South Sudan TV by President Salva Kiir on 16 December 2013 (see http://www.youtube.com/watch?v=boLU20O5JDI, accessed 24 February 2014).
[12] Aljazeera, South Sudan President fires Cabinet, 24 July 2013, Doha (see http://www.aljazeera.com/news/africa/2013/07/201372318388499663.html, accessed 24 February 2014).
[13] N.N., South Sudan Ex VP denies Coup Attempt, Labels Kiir ‘Illegal President’, The Sudan Tribune, http://www.sudantribune.com/spip.php?article49230 (accessed 24 February 2014).
[14] Athiaan Majak Malou, Synthesis and analysis of the current crisis in South Sudan, The Sudan Tribune, 24 December 2013, http://www.sudantribune.com/spip.php?article49315 (accessed 23 February 2014).
[15] African Confidential, Calling time on the killing, Vol 55 No 9, 1 May 2014, available from http://www.africa-confidential.com (accessed 12 June 2014).
[17] Nhial Tiitmamer and Abraham Awolich, ‘South Sudan’s Anti-corruption Efforts and Poor Global Ranking’, Policy Brief, The Sudd Institute, 17 January 2014, available from http://www.suddinstitute.org/publications/show/south-sudan-s-anti-corruption-efforts-and-poor-global-ranking/ (accessed 12 June 2014).
[18] Interview, Key Informant no. 3, Juba, 10 June 2014.
[19] See International Crisis Group, Eritrea: The Siege State, ICG Africa Report No. 163, 21 September 2010, interdependence (accessed 24 February 2014).
[20] Department for International Development, DFID Sudan Operational Plan 2011-2015, see https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/209587/Sudan2.pdf (accessed 24 February 2014).
[21] See International Crisis Group, South Sudan: Compounding Instability in Unity States, Africa Report No. 179, 17 October 2011, http://www.crisisgroup.org/en/regions/africa/horn-of-africa/south-sudan/179-south-sudan-compounding-instability-in-unity-state.aspx (accessed 24 February 2014).
[22] Mehari Taddele Maru, The Kampala Convention and Its Contributions to International Law, (2014), Eleven International Publishers, The Hague.
[23] Mehari Taddele Maru, ‘The Contributions of Ethiopia to the Abyei Peacekeeping Force’; ISS Today, Institute for Security Studies, available from <http://www.iss.co.za/ iss_today.php?ID=1358> (last checked on 29 October 2013).
[24] “Ethiopian general appointed commander of the UN forces in South Sudan”, Sudan Tribune, 17 June 2014, Juba, available from http://www.sudantribune.com/spip.php?article51370 (accessed 18 June 2014).
[25] IGAD, Communiqué of the 26th Extraordinary Session of the IGAD Assembly of Heads of State and Government on the Situation in South Sudan, Addis Ababa, 10 June 2014; IGAD, IGAD Agreement to Resolve the Crisis in South Sudan, 9 May 2014; IGAD, Communiqué of the 23rd Extraordinary Session of IGAD, 27 December 2013; IGAD, Communiqué of 24th Extraordinary Session of IGAD, 31 January 2014; IGAD, Communiqué of 25th Extraordinary Session of IGAD, 13 March 2014; for detailed and official documents are available at http://igad.int (accessed 14 June 2014).
[26] Tesfa-Alem Tekle, “South Sudan rebels reject stakeholder’s delegates’ selection process”, Sudan Tribune, 15 June 2014, Addis Ababa, available from http://www.sudantribune.com/spip.php?article51353 (accessed 18 June 2014).
[27] “South Sudan wants apology from IGAD for ‘warmonger’ article”, Radio Tamazuj, 17 June 2014, Juba, available from https://radiotamazuj.org/en/article/south-sudan-wants-apology-igad-‘warmonger’-article (accessed 18 June 2014).
[28] Interview, Key Informant 1, Addis Ababa 14 June 2014.
[29] See IGAD Agreement to Resolve the Crisis in South Sudan, 9 May 2014; and three Cessation of Hostilities Agreements (23 January 2014, 6 May 2014, and 9 May 204).
[30] South Sudan Symposium, IGAD and AU, AU Commission, Addis Ababa, 6-7 June 2014.
[31] See Andreas Auer and et al, Transitional Constitution of the Republic of South Sudan, An Expert View from the Outside, (Swiss Department of Foreign Affairs 2011).
[32] Andreas Auer and et al, Transitional Constitution of the Republic of South Sudan, An Expert View from the Outside, (Swiss Department of Foreign Affairs 2011).
[33] National Constitutive Conferences in Francophone Africa (Benin, Gabon, Congo-Brazzaville, Mali, Togo, Niger, DRC, Chad), only 3 of 8 ended in democratic systems. This includes South Africa and Namibia; see Andreas Auer and et al, Transitional Constitution of the Republic of South Sudan, An Expert View from the Outside, (Swiss Department of Foreign Affairs 2011).
[34] See Cliffe Lionel, Land Issues under Power Sharing: Comparing Kenya and Zimbabwe, Africa and Democratization (2009).
[35] Carter Center, Observing the 2005 Ethiopian National Elections, (Carter Center Final Report, December 2009) Pp. 37-38.
[36] See Andreas Auer and et al, Transitional Constitution of the Republic of South Sudan, An Expert View from the Outside, (Swiss Department of Foreign Affairs 2011).
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(First published in the book Legal Transformation in Northern Africa and South Sudan, (Published in August 2015 by Eleven International Publishing) by Mehari Taddele Maru
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