February 10, 2020 (SSNN)—While on one hand the government and its supporters vehemently oppose to the reversal of 32 to 10 States or any reduction thereto, the main opposition, the SPLM-IO and its supporters on the other hand make it clear that they cannot be part of the Revitalized Transitional Government of National Unity—R-TGONU unless the issues of the Number of States and their boundaries and Security Arrangements are resolved.
However, the issue of the number and boundaries of States has now become the most difficult to tackle and it has even overshadowed the issue of Security Arrangements. This makes the issue of the number and boundaries become a threat to the whole Peace Agreement given the extreme positions both parties are taking.
The statements on Facebook and other social media outlets made by different people behind the government and the SPLM-IO respectively make it clear that if the matter of the number and boundaries of the states is not handled well it may result into the total collapse of the Agreement that may further result into war.
I have reached the above conclusion based on the fact that if both parties are not compromising by agreeing on neutral position to resolve the matter amicably but continue maintaining their extreme positions as we are seeing currently, they may end up in direct confrontation on battle field to resolve it.
To make the matters worse, the IGAD and AU may not able to intervene directly as both sides of the divides are backed by a good number of citizens and the citizens may not be able to accept the position taken by both the IGAD and AU. Because of this, the issue of the number and boundaries has become a very serious threat to the Peace Agreement which requires us to put the simple question thus, what should be done if both parties cannot compromise or IGAD or AU cannot find a favorable to both parties in resolving the matter amicably?
In the previous article that I wrote some weeks back on the same matter, I tried to explain the steps to be followed in resolving the issue of 32 States and their boundaries. As the Agreement itself provides, the best way to resolve this issue is through well-prepared referendum that will enable all the citizens to have meaningful participation. In that article, I have stated that in resolving the dispute over the 32 States the following steps should be followed—
The first step is the formation of the Technical Boundaries Commission-TBC which would have to determine the true boundaries of 1.1.1956, which were violated in the process of the creation of 32 States. This means that in doing that, the TBC must restrict itself to addressing those boundaries by specifying the tribal boundaries of 1.1.1956 that were violated by the 32 States.
The Agreement makes it clear that the TBC should not interfere with the states without any dispute over boundaries. This is important because it tries to isolate the issues by dealing with the issue of land before the referendum so that the citizens should not end up opposing referendum as it will be seen validating their grabbed through the creation of 32 States.
In addition, the referendum cannot go on freely unless the issue of the boundaries under dispute is determined. This will ensure that that all 32 States are free from the dispute as the referendum cannot go on if there are disputes over the land or boundaries of the states.
The second step is that the TBC shall present its report to the Independent Boundaries Commission—the IBC and upon the reception of the report, the IBC would begin its work by determining the number and boundaries of the States appropriate for the Republic of South Sudan. The decision of the IBC in voting shall take into account: the population size and social cohesion, geographic size, and economic viability.
In case the IBC fails to reach the agreement over the number and boundaries of States, then the third step is the transformation of the IBC into the referendum commission.
The Agreement provides that if the IBC fails to reach the conclusion within 90 days then on 90th Day it shall transform itself into the Referendum commission on the number and boundaries of 32 States. The referendum is supposed to be conducted within the Pre-transitional Period but the Agreement does not anticipate the question that what if the referendum commission fails to conduct referendum with the time as provided in the Agreement? This question is the centre of our current conflict but it can be resolved if we can analyze the provisions of the Agreement itself which takes us to the third step.
The third step is for the parties to renegotiate the period within which to conduct the referendum which appropriately should be after the implementation of other parts of the Agreement. This is because all citizens must participate which means that peace must prevail if all citizens are to come back to the country and participate. The Referendum Commission can lead the way on what should be done as the Agreement gives it powers to do anything that is incidental to the success of the referendum.
Though the provisions of the Agreement do not explicitly provide what the referendum Commission should do, the fact that the Agreement provides that once the IBC transformed itself into the Referendum Commission, then it must work under the direct supervision and support of the African Union and the IGAD in accordance with the International guidelines (clause 1.15.15). This provision takes the implementation of the Agreement in respect to 32 States out of the hands of the parties to the Agreement and vast the power in the hands of the referendum commission.
In relation to the foregoing conclusion, it means that the Referendum commission has the power to determine whether it is feasible to conduct the referendum now or not. The factors to consider in reaching their decision are those provided in the international guidelines on referendums. The Guidelines for Constitutional Referendums at National Level Adopted by the Venice Commission at its 47th Plenary Meeting (Venice, 6-7 July 2001) set out minimum rules that are designed to ensure that this instrument is used in all countries in accordance with the principles of democracy and the rule of law.
It implies that the referendum must meet the fundamental principles of human rights such as universal, equal, free and secret suffrage. The application of the International Guidelines on human rights means that citizens must be free from fear so that those who are eligible to vote must decide freely whether to vote or not without external fear or influence. In addition, the participation of the majority of citizens freely in any referendum is one of the requirements for any referendum to be valid.
Hence, for referendum on 32 States in South Sudan to be valid and to meet the international guidelines referred to above, every South Sudanese eligible to vote must participate in the referendum process freely or freely abstain from voting which is only possible when all citizens have returned to the country and in the absence of any fear of any kind. The foregoing statement in practice means that all the South Sudan citizens in the neighboring States must be present in the country.
The participation of the majority in referendum is required since it takes into account the popular votes in which the question of partially or totally revising a State’s Constitution is asked, irrespective of whether this requires voters to give an opinion on a specific proposal for constitutional change or on a question of principle (United Nations Human rights Office of the Higher Commissioner).
The fourth step the Referendum Commission to close the gap already identified above by recommending the time for conducting the referendum. This means that the Referendum Commission can be of help by recommending the postponement of the referendum.
The recommendation should be based on the views of the parties to the Agreement as the Agreement itself provides that the Referendum Commission must work in consultation with the parties. But the parties do not have any power to dictate what the Referendum Commission should recommend in regard to the conduct of referendum over the 32 States.
Therefore, the implementation of the Agreement on the number and boundaries of States should be left to the Referendum Commission to properly determine the issue after the permanent peace is achieved in the country as the issue of land involved in the disputes over the tribal boundaries is a matter of Constitutional importance and connected to the national stability.
The disputes over boundaries is something connected to land which explains why the importance is attached to the issue of the number and boundaries of 32 States which must be settled with minimal political interference from politicians if the lasting Peace can be achieved. It is the same reason the Agreement gives those who are aggrieved by the decision of the IBC or Referendum Commission in respect to the disputes over boundaries to appeal to the International Court of Arbitration at The Hague.
It is the same issue the TBC is composed of the international experts who are supposed to determine the tribal boundaries affected by the creation of 32 States before the referendum. In recommending the international experts, the Agreement presumes that they will be able to deal with the matter impartially as they do not have any interest in the process and by that fact they will give correct conclusion on the disputed boundaries of the number of 32 States with dispute as they stood in 1.1.1956.
Fifth step is that after the recommendation of the Referendum Commission is accepted by the parties and endorsed by the African Union and the IGAD, the population census is conducted and it is that population as ascertained during freely and transparently conducted census that will be allowed to participate in the referendum. Whatever outcome that will come as a result of the referendum based on the proposal of whether 10, 21, 23, 32 or any other number suggested by the Referendum Commission will be adopted in the Constitution of South Sudan.
The next question to be dealt with as we prepare for the referendum is what about those whose houses are or land is affected by the order creating 32 States or what will they be doing before and during the referendum? In other words, where will they be staying since the land they are claiming is cut into other states which they do not want to stay under its rule?
The answer is that those that are affected by the creation of 32 States should remain in their homes even after the referendum unless they voluntarily choose to leave the houses or the land they are claiming. If they have decided to remain in the original homes or land before the creation of 32 States, then their right to remain there cannot be affected even if the referendum says otherwise.
This is because their rights to the land are not affected by the Constitutional order created by 32 States. The government should be ready to counter any groups that interfere with the individual South Sudanese settlement whose land was arbitrarily cut into a given state among 32 States during the creation of those states.
Besides, in order to protect the rights of individuals during and after the referendum, the Referendum Commission should also recommend the establishment of the Hybrid Court of Arbitration located in Juba in case if it lacks enough judges or different states if there are enough judges. Their main work will be to deal with the land cases before, during and after referendum so that the citizens will have the rights to appeal to the highest courts which will be Hybrid Court of Arbitration in matters of land. If those appealing have lost the case then the duty of the government is to move in to enforce the court’s decision.
It means that for the citizens to have confidence in the court and for the Court to command obedience from them, the judges to be appointed must be agreed by all the parties to the Agreement and their credentials be made public to all in a given period so that those who want to challenge the appointment of a given individual member of the court are free to do so without any interference. The African Court of Human Rights should locate temporary body in Juba as a Court of Appeal in such matters.
In summary, if the parties may compromise and adoption the foregoing states with modification or without, the conflict that is likely to occur at the moment may be avoided. The reason people have reached deadlock at the present is because they are operating outside the Agreement without being guided by it yet the issue is very complicated with very serious political implications on citizens and the country as a whole. In addition, the matter is complicated by the fact that the issues are not isolated to deal with issues of disputed boundaries first and then the number of states after.
The parties should go back to educate their members that the Agreement provides for the solution and the insistence on the approach outside the Agreement may result into the destruction of the whole Agreement and the war will be the only option.
Daniel Juol Nhomngek is a lawyer by profession holds LLB from Makerere University in Kampala, Uganda. He’s currently working with M/S Ibaale, Nakato & Co., Advocates, P.o Box 26781, Kampala, Uganda. His research, he is interested in teaching and law practice in the areas of criminal law, international human rights law and the law of armed conflicts, public international law, administrative law, Equity and Trusts, constitutional law, Jurisprudence or political philosophy, legal methods and theory, legislative drafting and judicial practice; and law & public policy. For any comment please reach the authority through any one of the these email addresses: