Analysis: Transitional Justice in South Sudan


“Transitional Justice in South Sudan: A Case for Sustainable Peace, Accountability, Reconciliation and Healing.”


Analysis | By Santino Ayuel Longar

Summary

The justice versus peace dichotomy or lack thereof has spawned both legal practice and international law literature for decades. As the debate pertains to the application of transitional justice specifically against the backdrop of mass political violence or civil wars, some jurists, legal practitioners and other scholars suggest that, on the one hand, justice and peace are mutually exclusive concepts. This implies that neither peace nor justice can be pursued without adversely impacting or displacing the other. Others, on the other hand, maintain that peace and justice are mutually reinforcing virtues, suggesting that the pursuit of one serves to augment the other.

While the third school of thought acknowledges that both peace and justice are indispensable virtues for a dignified human life, it contends that an overreliance on the pursuit of justice at all costs is detrimental for sustainable peace. As well, it argues that justice should not be sacrificed on the altar of peace. In this regard, the third way proposes that the stringent standards of pursuing peace and justice should be relaxed in the interest of a balanced solution.

Cognizant of the fact that South Sudan is a deeply divided and polarized country, this piece suggests that the most appropriate vehicle for pursuing transitional justice in South Sudan is in the form of truth, reconciliation and healing (TRH) and, perhaps, compensation but not through criminal prosecutions of the actions of key players in the recently concluded conflict. Failure to observe the delicacy of balancing peace and justice only operates to fester the conflict. That is in part because key actors in a mass political conflict are cushioned by their (ethnic) constituencies and in part because, generally, justice deferred solely for the sake of peace may actually breed more insecurity just as sacrificing peace for the sake of justice only yields incendiary results.

Introduction

Since 2020, South Sudan, the world’s youngest country, has been making concerted efforts to recover its shattered soul following years of a protracted conflict that claimed at least tens of thousands of human lives and flashed down most of the country’s socio-economic and political structures. The phrase “at least” connotes a significant caveat, having regard to the fact some (Western) sources estimate the war fatalities to be as high as 400,000 over a period of 5 years—beginning from 2013 to 2018 [Rolandsen, 2015; The Sentry Report, 2019; London School of Hygiene and Tropical Medicine, 2018].

The signing of the Revitalized Agreement on the Resolution of the Conflict in the Republic of South Sudan (R-ARCISS) in 2018, however, paved the way for the formation of a new Unity Government (RGONU) in February. The R-ARCISS commits the RTGONU and the people of South Sudan to rebuild their country, in part, by pursuing modalities for fostering sustainable peace, create a conductive environment for boosting livelihood opportunities, and reconciling various groups and communities.

While the R-ARCSS presents a number of important provisions, Chapter V in particular provides for Transitional Justice, Accountability, Reconciliation and Healing. To that end, the R-ARCISS commits the RTGONU to pass an enabling piece of legislation with the view to establishing three main transitional justice institutions, namely the Commission for Truth, Reconciliation and Healing, the Hybrid Court, and the Compensation and Reparation Authorities.

The establishment of these tripartite institutions is, thus, imperative, having as their principal objectives, first, of ensuring that perpetrators of mass atrocities committed by either side to the conflict are held accountable. Second, that justice is rendered to the victims (including, though impractical, the idea of compensating victims). Finally, that the people of South Sudan get the opportunity to reconcile and find healing from the traumatic experience of war and animus towards one another. But in many practical respects, the quest for peace or justice may yield incendiary results as discussed below.

Against this backdrop, this paper seeks to advance a proposition that in light of deep-seated divisions and polarization that exist in South Sudan, criminal prosecutions are more likely to erode the gains of, and even unravel, the R-ARCISS. For this reason, the most viable vehicle for implementing transitional justice in South Sudan is the truth, reconciliation and healing process. Finally, the paper provides policy considerations and recommendations for why this approach is rationally more justifiable and practical in the context of South Sudan.

Peace versus Justice: Mutually Exclusive or Reinforcing?

While both justice and peace are desirable virtues for a dignified human life and/or existence, a commitment to attaining the objectives envisioned by the R-ARCISS should take into consideration the long-term goals of concurrently pursuing sustainable peace and

justice. This consideration includes a concern that a rigid pursuit of justice or peace may practically undermine the underlying vision for durable peace or justice. It may, as well, obstruct the implementation of the R-ARCISS. That is, in the circumstances in which the impugned acts were committed in South Sudan between 2013 and 2018, an overly ambitious commitment to justice may only come to pass at the expense of sustainable peace and vice versa. This, consequently, may defeat the grand scheme, architecture, vision and object of the R-ARCISS.

Traditionally, the peace versus justice debate revolves around two contrasting schools of thought. The first postulates that peace and justice are mutually reinforcing concepts while the second predicates itself on the idea that peace and justice are—without any balance of convenience—mutually exclusive imperatives. To these two theories, there also exists a third mechanism: truth, reconciliation and healing. The third mechanism may be sought along the spectrum of the other two traditional schools. Each of these three schools is briefly discussed below.

Justice and Peace are Mutually Reinforcing Imperatives

Those who argue that peace and justice are mutually reinforcing concepts claim that attaining peace is much more than the end of war or violent conflict and that any meaningful search for peace can only be founded on rendering justice to victims and punishing the culprits. Otherwise, any peace agreement not predicted on justice is intrinsically vulnerable: being subject to collapse and reversing the gains of a peace agreement (Phil and Sylvie Good, 2019). Along this line, justice is seen as an essential element of realizing sustainable peace, having the ability to provide the necessary remedy to the victims of mass atrocities arising from political violence. Finally, proponents of the primacy of justice as a foundation for sustainable peace contend that an overreliance or focus on justice also serves vindication and retribution purposes against perpetrators of mass atrocities. It is along this line that peace and justice are seen as mutual imperatives. The contention that peace and justice are mutually augmenting clearly goes against the grain of a Latin legal philosophy that “fiat iustitia pereat mundus.” This philosophy is co-extensive with the idea that justice must be pursued at all costs, even if doing so culminates in bringing the world to an end (Krzan, 2016).

The proponents of the “no peace without justice” philosophy cite the pacifying effects of the 1947 Nuremberg and Tokyo Military Tribunals Trials in Germany and Japan, respectively. These two trials, against the operating minds of the Nazi regime and Imperialist Japan, are, in other words, often used to demonstrate how a robust commitment to the pursuit of justice ushers post-conflict societies into sustainable peace. This further suggests that courts must be part of the ultimate end to wars or violent conflicts. This can only come to pass as a function of prosecuting individuals most responsible for egregious atrocities in the face of mass political violence (Ohlin, 2009). Courts and criminal tribunals are, thus, an essential instrument of realizing sustainable peace (Blewitt, 2006).


This leads to the natural conclusion that justice and peace are not contradictory but mutually augmenting virtues, having the capacity to promote and sustain each other (UN Secretary, General, 2004). The implication is that where mass crimes are not addressed because the underlying cause of a violent conflict is only embellished, the victims’ calls for justice are only muted, leaving the odds largely stacked against the peace. Put differently, the danger of violence recurring, remains high.


Yet this claim must be understood against the backdrop of the fact that the two tribunals cited above were vehicles for delivering “victors’ justice” in the aftermath of World War II. Their paradigm and organizing principle precluded any significance of balancing demands for peace and justice in a situation where both sides enjoy equal arms (LeRiche, 2014).

Peace and Justice are Mutually Exclusive Imperatives

The proponents of the theory that justice and peace are mutually exclusive imperatives contend that, in the context of mass political violence, an overly ambitious commitment to the pursuit of justice does not only undermine the attainment of sustainable peace but also overlooks the significant role of key war architects (whatever their respective roles may have been during the conflict) in the negotiations that eventuate in the signing of peace agreements. This, proponents claim, suggests that much as it may be insisted that “fiat iustitia pereat mundus,” the search for a more sustainable peace is, by and large, premised, on ensuring that peace-mediators and its guarantors strive to bring together all military combatants and their constituencies. The interests of these groups must never be sacrificed on the altar of justice (Mbeki & Mamdani, 2014).

This leads to an important conclusion that in the event of a conflict between the concurrent pursuit of peace and justice, the pursuit of peace must supersede the quest for justice. In this regard, an overly ambitious pursuit of prosecuting perpetrators of mass atrocities in a postconflict society more is likely to undermine the realization and implementation of any peace agreement. That is because prosecuting perpetrators of political violence tends to be seen by their supporters as an en masse prosecution of their entire constituencies. Such optics are more likely to torpedo the chances of political settlement in post-conflict societies (LeRiche, 2014, supra). In fact, peace negotiators may themselves fear being arrested or prosecuted following the signing of peace, especially if they (and they often) are perpetrators themselves. For this reason, an insistence on accountability may inhibit or obstruct efforts for ending conflicts or wars (Gissel, 2015, and Hayner, 2000, Skaar, 2018).


More importantly, a stringent demand for accountability tends to undermine the ability of any sitting government to defend itself from an armed opposition. For instance, if a legitimate government is ever to assert its authority without being able to protect itself against violence or threats of violence from any violent opposition, then the concept of a legitimate government falls asunder. This may make all governments vulnerable and engender long-term instability. The stakes could not be higher especially in developing countries. That is because no country would be able to use force to defend itself. Yet all governments should be able to enjoy a modicum of latitude to deploy the legitimate use of force not only to protect themselves but to keep law and order (LeRiche, 2014, supra). Imbued by this approach, the Truth and Reconciliation Commission for Sierra Leone in 1999, emphasized that “those who argue that peace cannot be bartered in exchange for justice, under any circumstances, must be prepared to justify the likely prolongation of an armed conflict” (Report, vol. 3b, Section 11).

This view is, as well, in sync with scholarship on the enduring tensions between the two ideals. On the one hand, an insistence on prosecution or pursuit of justice is tantamount to the prolongation of violent conflicts or hostilities. The pursuit of peace, on the other hand, requires that mediators and guarantors of peace resign themselves to some form of injustice (D’Amato, 1994). A stringent pursuit of prosecution operates as a disincentive for peace, having the potential to inspire a prolongation of conflicts and eventuate in the commission of even more atrocious crimes (Clark, 2012). In this connection, the task of ending violent conflicts and wars requires peace negotiators and mediators, as well as guarantors of peace, to remain seized and vigilant about assuming the shoes of a prosecutor (Anonymous, 1996).

In short, advancing the cause of peace and justice, especially in fragile post-conflict societies such as South Sudan, demands strategic considerations and planning with the view to integrating both peace and accountability carefully, having regard to proper sequencing and timing of implementing agreed upon items in the peace agreement (Krzan, 2016, supra, 2009). Seen as such, a more balanced solution may be explored along the spectrum of values relating to peace and justice (UN, SG, 2004, supra).


Truth, Reconciliation and Healing and Rehabilitation: Customizing the Application of Transitional Justice to the Specific Needs of South Sudan

In the context of applying the concept and practice of transitional justice to a deeply divided post-conflict society such as South Sudan, customizing the concepts of transitional justice or the justice versus peace debate to specific domestic needs is part of the inherent dilemma that peacemakers and human rights advocates have to grapple with.

While a criminal justice system is generally more appropriate in terms of exacting accountability and rendering justice directly to victims of mass political violence, the pursuit of justice must also be examined from the standpoints of both its salutary effects (especially on society) and deleterious effects (especially on an individual perpetrator or victim). Notably, the quest for peace and justice demands the establishment of a more inclusive and comprehensive process that seeks to strengthen institutional structures, promotes the rule of law as well as law and order (LeRiche, 2014, supra).


A more pertinent opinion on this matter was jointly issued by the former President of South Africa, Thabo Mbeki, and Professor Mahmood Mamdani in An Op-ed published in the New York Times, in 2014. In their article entitled, “Courts Can’t End Wars,” the authors underscore that in the face of mass political violence, criminal accountability ought to be placed on the backburner. That is because, in their view, actions of key political leaders should be decriminalized as much as possible in order to resolve the underlying causes of violent political conflicts. Such a contention is plausible in light of the fact that in the course of political violence, the premium should be placed on the search for truth, reconciliation, healing and (one may add) rehabilitation, rather than criminalizing the behavior of the operating minds of political conflicts.


If the premise of the argument put forth by both Mbeki and Mandani is any guide, it stands to reason that what South Sudan needs, especially in its early stages of state-formation, is not criminal prosecution but a truth, reconciliation and healing (TRH) program that mirrors what was done in other African countries, such as South Africa, Mozambique, Sierra Leon and Rwanda between mid-1980s and early 1990s. This is why the two authors went on to suggest that, besides a truth and reconciliation approach that builds the society from the bottom up, South Sudan should also continue with the “Big Tent” policy as part of political settlement of the conflict. Doing so, they stress, would bring together all military combatants, whatever their respective roles may have been during the conflict.


In this connection, it is plausible to contend that customizing the application of transitional justice in the context of South Sudan is better workable if a premium is placed on the traditional justice system involving truth, reconciliation and healing. Both Mbeki and Mamdani believe that the TRH process is far superior to criminal justice system approach when dealing with issues arising from mass political violence. Again, that is because, in light of the fact that almost all perpetrators of political conflict have (ethnic) their constituencies, criminal prosecutions of key actors in the conflict are more likely to be construed as a form of witch-hunt. For this reason, prosecuting such actors potentially undermines the quest for sustainable peace generally and the implementation of a peace agreement specifically.


Nevertheless, in the face of the magnitude of violence that South Sudan has had to endure, especially between 2013 and 2018, one would be remiss to dismiss the idea that some form of accountability is unavoidable.

In a fragile and deeply polarized country such as South Sudan, however, accountability can hardly be achieved by adopting an adversarial approach to justice. Rather, a more customized approach that is consistent with traditional justice values such as but not limited to the concepts of truth (an admissions of guilt), reconciliation, forgiveness and healing, as well as compensation in rare circumstances, may be more suitable (LeRiche, 2014, supra). A conception of justice encompassing such values can be found among many communities in South Sudan.

Matthew LeRiche and Marc Nickkle have specifically identified the concept of puk/pug among the Dinka. Pug aims at ensuring that perpetrators of violence must be made to pay compensation for wrongful death. Where pug has not been undertaken as sanctioned by customs, a cycle of revenge killing may ensue. That also suggests that failure to observe the framework of customary justice inherently perpetuates violence in the form of revenge killing on the part of the victim’s relatives (LeRiche, 2014, supra). The net result is an endless cycle of violence among different groups. Furthermore, unlike criminal prosecution, pug involves the participation of communities on both sides of the conflict (Nikkle, 2001). And its outcomes, one may add, are realized in the form of a win-win (not one of win-lose) solutions that are normally associated with criminal prosecution.

For this reason, an approach to the transitional justice framework in South Sudan should primarily be premised on TRH, having regard to the fact that South Sudan is a deeply divided and polarized society where the application of an adversarial (criminal) justice may produce incendiary results. If South Sudan takes the path of criminal prosecutions against the alleged perpetrators of violence and mass crimes, it cannot be an exaggeration to underscore that perpetrators will feel betrayed by those on whose behalf they purportedly responded. That is, the likelihoods of feeling that they were being used by the State or political leaders as an end cannot be exaggerated. Furthermore, their respective constituents are likely to see criminal prosecutions as a witch-hunt and may react in a way that may well unravel the R-ARCISS.

Conclusion


The foregoing demonstrates that the peace versus justice dichotomy requires a balance of convenience. In assessing what appears to be an inverse relationship between peace and justice, this piece has emphasized that neither the rigid principle of “fiat iustitia pereat mundus” nor the idea that justice must be sacrificed on the altar of peace is helpful in realizing both justice and sustainable peace in a post-conflict South Sudan.

For this reason, a more balanced approach to the peace versus justice dilemma in the specific context of South Sudan can be found by adopting a third way in the form of truth, reconciliation and healing, not by criminalizing the actions of key political players in the conflict. Failure to observe the delicacy of balancing peace and justice only operates to ferment the festering of violent conflicts. That is because justice deferred solely for the sake of peace may actually breed more insecurity just as sacrificing peace for the sake of justice only yields incendiary results.

Policy Considerations and Recommendations

In light of the deep-seated divisions and polarization that exist in South Sudan today, it is critical to ensure that an approach to transitional justice in South Sudan is one that preserves as much as possible the imperatives of both peace and justice. The implementation of the R-ARCISS’ provisions on transitional justice should not push the boundaries too far. With this in mind, it is important that the RTGONU and the international community consider the following policy considerations and recommendations.

(i) First, mass political violence is largely driven by key political actors or perpetrators who respond to the call or purport to protect the interests of certain constituencies. Since their constituencies see them as surrogates of their own welfare, it would be counterproductive to approach the case of transitional justice in South Sudan through criminal prosecutions. Rather, what is advisable to pursue in the context of South Sudan is the program of truth, reconciliation and healing (and compensation where necessary). That is because any effort to pursue criminal prosecutions operates to advertently or inadvertently undermine the interests of sustainable peace, just as any approach that places a premium on the primacy of peace undermines the cause of justice. For this reason, the application of transitional justice principles must be customized in such a way that contextualizes specific domestic justice system that promotes the search for truth, reconciliation, healing and forgiveness, not retribution or vindication.

(ii) Second, the RTGONU and the international community should not ignore the resolutions of events and parallel domestic processes that are intended to achieve the same results as transitional justice. For instance, the South Sudan National Dialogue process, which ended in December 2020, took nearly 4 years to complete. It meticulously collected a huge amount of data, both from the grassroots and political elites. It sought people’s views on the best ways for assuring a prosperous and peaceful country by focusing on major thematic issues such as governance, economic and structural reforms, as well as modalities for building strong and vibrant public institutions. It also sought to promote social cohesion among different groups and communities.

The process received remarkable reception from all quarters of South Sudan, except among some political elites. More importantly, the objectives of the National Dialogue paralleled those of the R-ARCISS. Since the National Dialogue does not, in pith and substance, contradict or frustrate the spirit, scheme and framework of the RARCISS, it is a complementary process to the R-ARCSS.

In fact, one may add that the scope of the National Dialogue is far wider than that of the R-ARCISS, considering that the scope of the latter is limited to accommodating the interests of parties to the conflict, while the former covers the interests of the wider public, having the ability to accommodate all the voices of the people of South Sudan with the view to addressing varying grievances. So considered, the National Dialogue resolutions epitomize the decision of the sovereign people of South Sudan, representing all ten states and three administrative areas. For this reason, an approach to transitional justice should ensure that it does not negate or controvert any settlement process or framework that the people of South Sudan have accepted as legitimate and conciliatory. The resolutions of the National Dialogue should be factored into consideration in carrying out the precepts of transitional justice in the country.

In making this recommendation or public policy consideration, this paper is mindful of the fact that an imperfect obligation in the form of TRH runs the risk of failing because it has no legal teeth: it is lacking in prosecutorial powers. Yet one may ask whether the fear of the failure of the TRH process is potentially greater than the fear of a return to war. This piece argues that the latter would be more catastrophic.

(iii) Thirdly, in pushing for the implementation of the R-ARCISS’ provisions on transitional justice in South Sudan, the RTGONU and international community should enlist the support of regional and continental bodies to press upon them the superiority of TRH over criminal prosecutions. It is this paper’s considered position that criminal prosecutions are more likely to open a Pandora’s Box in the region and beyond. The putative precedent established by criminal prosecutions arising from the practice of a hybrid court in South Sudan could very well snowball into a practice that may not bode well for most countries in the region, considering that the ingredients for the nature of mass political violence and their attendant atrocities seen in South Sudan are ripe and readily discernable in almost all countries in east Africa and beyond, notwithstanding differences in the magnitudes and frequencies of occurrence of such crimes in each country.

(iv) Despite the policy consideration and recommendation in (iii) above, it is worth noting that South Sudan should take the process of transitional justice very seriously. It does not matter how long this process takes. What is important is that some form of justice to the victims and personal accountability should not and cannot be avoided. For instance, even if they escape jail time, all individuals—military or political leaders— accused of war crimes or crimes against humanity in the course of the 2013-2018 conflict should be barred from running or holding any public office. Through the TRH process, the people of South Sudan have the power to bar from holding any public office anyone deemed to be an obstacle in advancing the greater good. This ban should not be limited to those most responsible for violence and mass crimes but also anyone found to have engaged in egregious conduct of economic corruption and plundering of natural resources, etc.

(v) Where necessary, some of the crimes committed between 2013 and 2018 should be tried by means of traditional legal system. For instance, matters of cattle theft or destruction to a private property during the war can be tried through traditional court systems where some form of compensation can be exacted.

(vi) Finally, as a matter of public policy, the idea of reparations or compensation for damages incurred between 2013 and 2018 should not be part of the transitional justice accountability. That is because it is often difficult to quantify the volume of damages in the face of civil conflict as well as determining which side was responsible for which damages. Second, in a developing country such as South Sudan which, for example, continues to struggle to pay its civil servants, effecting compensation would place an undue financial burden not only on the government itself, but also on the next generations of South Sudan. In light of the inability of the South Sudanese Government to even satisfy its own basic domestic and international obligations, it stands to reason that making compensation part of the TRH package is clearly impractical.

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About Sudd Institute


The Sudd Institute is an independent research organization that conducts and facilitates policy relevant research and training to inform public policy and practice, to create opportunities for discussion and debate, and to improve analytical capacity in South Sudan. The Sudd Institute’s intention is to significantly improve the quality, impact, and accountability of local, national, and international policy- and decision-making in South Sudan in order to promote a more peaceful, just and prosperous society.


Author’s Biography


Santino Ayuel Longar holds a Ph.D. in Law from Queen’s University, Canada. He is a barrister, solicitor, and notary public, being a member of the Law Society of Ontario, in Canada. His research interests include but are not limited to international human rights law, international humanitarian law (the law of armed conflicts), public international law, international investment law, history, administrative law, tort law, public law, contract law, and constitutional law. He can be reached at ayuelongar@gmail.com.

The Fallacy of the so-called National Dialogue

Who would bell the CAT? |Photo: Adija Acuil

Analysis | By Dr. Lam Akol

November 10, 2020 (Thessherald)–On the 3rd of November, the National Conference of the “National Dialogue” was opened in Juba amid a fanfare that it represented the voice of the people of South Sudan. “Our people have spoken” was a recurrent and repeated phrase by the organizers of the Conference in self-congratulation for a job well done. But which people? Where?

The organizers of the conferences have not been to the areas affected by war. For instance, they have not visited large parts of Equatoria and Upper Nile regions, let alone talking to the people there. As a matter of fact, their Conference for Upper Nile region was held in Juba, not anywhere in the region. This was the clearest testimony that the claim that “our people have spoken” is at best partial.

To put the whole matter into perspective, it is important to trace the origin of this so-called “National Dialogue”. On 14th December, 2016 President Salva Kiir Mayardit announced before the Transitional National Legislative Assembly (TNLA) a National Dialogue conference to be held in Juba. The objectives of the exercise were set as ten points including to “end all forms of violence in the country”. He also stated that “the National Dialogue is placed within the framework of the Peace Agreement (ARCISS).’’ The initiative didn’t kick off until it was relaunched on the 26th of May 2017.

Whereas the concept of National Dialogue is one of the ways a country can choose to deal with the root causes of its problems, a credible dialogue cannot take place while the war is raging as was the case in South Sudan when it was anounced. It can only be meaningful when the country is enjoying peace. In fact, the National Dialogue was announced with the onset of the government’s dry season military offensive in December 2016 and relaunched together with a unilateral ceasefire declaration at the end of that military campaign in May 2017.

Therefore, it is difficult to avoid the conclusion that it was intended to gain military advantage on the ground while hoodwinking the world into believing that the government was seriously pursuing peace. Furthermore, All the objectives spelled out in President Kiir’s speech before the TNLA, except “to end all forms of violence in the country”, are a mixture of matters related to the Constitution Making Process and issues to be discussed under Transitional Justice that are clearly dealt with under Chapters V and VI of ARCISS. Hence, these objectives could have been achieved with the full and faithful implementation of the peace agreement which he had vowed not to implement. In this context, it was obvious that the National Dialogue was meant to sidestep or replace ARCISS. The noises we hear from inside that conference today tend to suggest, if not confirm, that this “National Dialogue” is a substitute for R-ARCSS and its resolutions are final and ready for implementation.

This conference is not a new undertaking as people are made to believe. It is a continuation of the initiative announced in December 2016 and implemented in some parts of South Sudan since May 2017. Nothing proves that point more than the announcement from the organizers that the conference is to deliberate on the recommendations of the Regional Conferences and tabling before it documents related to those conferences and other meetings held by the organizers in some parts of South Sudan not affected by war. As we all know, the three regional conferences recommended the maintenance of Kiir’s infamous 32 States, a presidential system of rule, decentralized governance, etc. These are some of the issues the ongoing conference will discuss and take resolutions on.

The question is: what is the legitimacy of this coming-together?

The most fundamental point to be resolved first in all National Dialogues worldwide is to define its objective(s) and who the participants will be. That is followed by deep discussions between all the parties to work out the agenda, choose a steering committee and agree on the venue of the conference. The current “National Dialogue” overlooked all that. One party defined its objectives, appointed a steering committee and declared itself Patron of the dialogue. Now, at the last stage of its monologue, they would like other parties to bless its political position in the name of national consensus.

This is being clever by a half. Some of the organizers of this conference were delegates to or witnesses of the Round Table Conference held in Khartoum in March 1965 in order to resolve the Southern Problem. They know the steps taken and amount of energy expended in preparation to convening it. Therefore, the meeting in Juba cannot pass as a nationally agreed upon forum to deserve the name of “National Dialogue” whose resolutions are ready for the government to implement. Even if that was the case, our government is not a normal government that can claim a popular mandate.

The legal and constitutional basis of the Transitional Government of National Unity (TGoNU) currently presided over by Salva Kiir is solely derived from R-ARCSS. Therefore, its legitimacy and mandate stems from that agreement. R-ARCSS is the programme of the TGoNU and it cannot act outside it. Where do you anchor “National Dialogue” to R-ARCSS?

If this conference is to discuss constitutional matters, establishing state structures, reforming government institutions, etc., it must relate to RARCSS rather than claim to stand on its own or even supplant the agreement as some of its organizers have insinuated. The Revitalized Peace Agreement has provided for a forum to discuss our constitutional matters in an open, thorough and transparent manner. A full chapter, Chapter VI, is devoted to “Parameters of Permanent Consitution”.

It sets out the principles of the Permanent Constitution-making process, its phases, a preparatory committee for covening the National Constitutional Conference that will deliberate on the Permanent Constitution and the process of adopting the same. This is a consensual course agreed by the parties, not the conflictual course chosen by the patron and organizers of the so-called National Dialogue. It is the only forum acceptable by all to take decisions on the system of rule (parliamentary, presidential or mixed), what type of federalism, the number of States, etc. The provisions of R-ARCSS stand a better chance of being accepted by all because all are involved in the process.

Also, a whole chapter, Chapter V, is dedicated to “Transitional Justice, Accountability, Reconciliation and Healing”, very essential elements to get over the atrocities meted out against our people during the devastating war. It establishes transitional justice institutions: Commission for Truth, Reconciliation and Healing, the Hybrid Court for South Sudan and Compensation and Reparation Authority. Impunity must be fought through the courts, there must be genuine reconciliation predicated on truth telling, and the victims of the war atrocities deserve compensation.

The people of South Sudan will not be taken in. They will see the Juba meeting for what it really is: a futile attempt to impose one view-point on our people and sneak through the backdoor controversial issues that were at the centre of conflict in the country.


The author (Lam Akol Ajawin) a prominent South Sudanese politician and the leader of the National Democratic Movement (NDM).

Analysis: The Dangers of Covid-20: South Sudan’s Political Dilemma

Analysis

(Right to Left) Vice President Taban Deng Gai,FVP Dr. Riek Machar, President Salva Kiir Mayardit and Vice President James Wani Igga/Photo: File


May 14, 2020 (Thessherald)–The novel coronavirus is not changing the world. While the virus itself fails to discriminate between the poor and the powerful, its effects are mediated by unequitable social structures and economic hierarchies. These are not crumbling but are rather being reinforced through quarantines and lockdowns. Such responses are immobilizing the structures that the most vulnerable use to prevent crisis, resulting in Covid-19 overwhelmingly afflicting those who are already suffering. In countries suffering from conflict and hunger, such responses are likely to entrench class divisions between political elites and the suffering majority. The Covid-19 response in South Sudan is a clear example.

On Tuesday 28 April, South Sudan’s Covid-19 taskforce, led by Vice-President Riek Machar, announced that the country had 34 confirmed cases of the novel coronavirus. With this announcement came further measures designed to halt the spread of Covid-19, including the immediate closure of all tea and shisha stalls, a 7pm-6am curfew, and the closure of all bars. These measures follow on from earlier government decrees that banned large gatherings, suspended international flights, limited all international and inter-state travel, and shut down all non-essential service providers, amongst other measures.

On 7 May, with the number of cases in South Sudan increasing rapidly (as of 12 May, there are 174 confirmed cases), the Presidency announced an immediate relaxation of the lockdown, with the beginning of curfew moved to 10pm, the re-opening of shops and restaurants, provided that social distancing is followed, and the promise that internal travel within South Sudan shall resume soon.

Covid-19 is highly likely to cause significant mortality in South Sudan. If the spread of the virus follows patterns that have occurred elsewhere in Africa, cases in South Sudan could be in the hundreds of thousands in June. The country has a young population, and thus, like elsewhere in East Africa, can hope to avoid the shocking death rates amongst the old that Italy and other Western European countries have witnessed. Yet, much is not yet known about how Covid-19 will interact with other comorbidities that are prevalent in South Sudan such as malaria, hepatitis, yellow fever, measles and malnutrition. Across Africa, high levels of TB, untreated HIV, diabetes and hypertension may all put people at increased risk of severe Covid-19. To combat these risks, the South Sudanese government introduced draconian measures that are unlikely to be successful.

The lockdown measures imposed on 28 April and partially lifted on 7 May effectively import into South Sudan the approach to the virus that has been taken by much of Europe, and ignore alternative strategies that might be feasible in this context.

There are two possible justifications for ‘lock-down’. In China, the government effectively erected a cordon sanitaire around Hubei and implemented firm restrictions on movement within this cordon, successfully containing the virus. In Europe, lockdown has attempted to ‘flatten the curve’ – slow the spread of the virus so that medical services do not become overwhelmed, due to an excessive demand, for instance, on intensive care units.

Neither of these conditions pertain to South Sudan. Confirmed Covid-19 cases in South Sudan are not restricted to a single area, so there is no dangerous population to isolate (cases have rather first appeared in Juba and in the border areas with Uganda, with unconfirmed cases now apparent in clusters across South Sudan).

Plus, there is inadequate state capacity to meaningfully implement lockdown on the scale that we have seen in China or South Korea – places where it has worked effectively. Even at the best of times, state capacity would fall far short of what is required for such measures, and currently, while the transitional government is still being appointed, there are no country commissioners and serious ambiguities over sub-national authority. Any implementation of lockdown is likely to be piecemeal, focused on the poor, and aggravate already-existing state–society tensions.

South Sudan’s medical infrastructure is also not sufficiently equipped for a strategy of ‘flattening the curve’ to be meaningful; in a country with five vice-presidents, there are only four ventilators. The UN has expanded the bed capacity from a few dozen in hospitals in major cities, but even this small increase is unlikely to be matched with even basic equipment and health professionals. At the same time, South Sudan’s limited medical infrastructure has suddenly become of great interest to the country’s elite. In prior years, this elite sought help abroad. However, with the closing of the borders of regional neighbours like Uganda and Kenya, it is unclear whether the elite can still seek to be treated elsewhere, and thus, the state of South Sudan’s own infrastructure has become of pressing importance.

At the same time, according to many South Sudanese across the country, the lockdown is itself a function of the leadership’s fear of a virus that fails to distinguish between rich and poor, especially when medical infrastructure is available to neither. The lockdown primarily functions to try and protect the political elite, at the cost of South Sudanese society, which cannot easily bear the costs of lockdown. South Sudanese also accuse their leaders of setting up the Covid-19 Taskforce to divert aid for their own private benefit. This is already happening in Somalia and threatens to have serious, violent political consequences. South Sudanese accusations are driven by the political elites’ past indifference to previous problems faced by the country. All over the world, the implementation of lockdown orders has revealed stark inequalities between wealthy classes with sufficient resources to isolate and socially distance, and a class on which they depend: those who do not have the financial resources to isolate and whose labour is necessary for society to function. In South Sudan, this divide is particularly egregious. The only people in South Sudan even potentially able to endure a lockdown are the political class.

It is thus darkly ironic that some of the political elite are acting as if the rules do not apply to them. Last month, the pastor Abraham Chol was arrested for violating the order banning large gatherings, and sentenced to a month in prison. However, in footage widely shared on South Sudanese social media, the military and police officers present at his trial were themselves not obeying social distancing instructions. Further images have circulated of SPLA-IO defectors to the government gathering in defiance of the government’s own order, and not obeying social distancing requirements. Some military leaders have refused to let their children be tested or quarantined. Murle leader David Yau Yau flew to Juba on 26 April, defying the ban on inter-state movement. While the lockdown has been imported into South Sudan to protect the elite, it is unlikely to be successful. As we have seen, it is the elite themselves who are most likely to travel abroad, break social distancing requirements, and become the main vectors for viral transmission.

Rather than these measures blocking transmission of the virus, it is likely that the reaction to Covid-19 will be as deadly as the disease itself, especially as it increases vulnerability to hunger and other possible comorbidities. A friend in Western Bahr el Ghazal (South Sudan) recently told us that he was suffering from Covid-20. We queried: surely you mean Covid-19? No, he corrected us, Covid-20, that is what we are calling hunger these days. ‘It is a virus worse than Covid’. Lockdown measures are putting people out of work, and putting increased pressure on scarce resources. Covid-20 is not bringing about a new world, but is reproducing and intensifying existing situations of hunger and inequality.

Already, the closure of the land border with Uganda and other international restrictions has seen food prices spiral in April 2020, with the price of a kilogram of maize in Juba going from 159 SSP to 298 SSP. At the same time as food prices are increasing, stay-at-home orders are ripping through South Sudanese society’s capacity to provide for itself. Even if everyone – including the elite – followed the government’s mandated rules for lockdown, it would still not be a viable strategy for South Sudan. There is not a sufficiently developed service economy that would allow people to do work-at-home jobs. Indeed, the measures announced on 28 April, including the ban on selling tea, are likely to hit some of the poorest and most disadvantaged members of South Sudanese society, as they have in neighbouring Uganda. At the same time, there are not sufficient government resources to engage in the sort of income replacement measures we have seen work in Canada or Denmark, for example.

The partial lifting of the lockdown on 7 May is welcome, and will alleviate some of the worst consequences of these measures, by allowing tea sellers to work and businesses to resume. It should also allow humanitarians, such as Médecins Sans Frontières, to bring urgently needed health workers to the places most in need. However, the incoherence of South Sudanese policy comes with its own risks, as allowing inter-state travel to resume might bring a wave of people leaving urban areas such as Juba, where food and rent are expensive, and returning to rural areas, risking the further spread of Covid-19.

In addition, the disturbances created by the lockdown measures are likely to intensify the threat of other illnesses, such as malaria, cholera, malnutrition, and measles, as resources become scarcer, international NGOs find it more difficult to move around and replace staff, and already-minimal health services become even harder to access. The situation remains particularly difficult in the Protection of Civilian sites (PoCs). Conditions in the PoCs, in terms of population density and the impossibility of social distancing measures, are akin to the conditions in prisons, and it is in prisons that we have seen particular challenges during Covid-19.

The very structure of South Sudanese society makes lockdown and social distancing very difficult to implement. In South Sudan’s urban areas, much of the population lives in sufficient density that social distancing is not possible; there is also not sufficient clean water, in many places, for handwashing to be a viable strategy, and there are acute shortages of masks. People also rely on the daily collection of water and purchase of food, forcing regular interactions. There is no social basis for quarantine to occur.

In many rural areas, in contrast, where low population densities function as their own sort of social distance, forms of work and living require close contact between members of society. The deep social and economic connections between towns and rural areas also make it impossible to isolate and protect rural areas. Elites often move between rural areas and the towns, and these are precisely the people which police and soldiers cannot restrain. The best hope rural areas have for protection from Covid-19 is the early intensification of the rainy season that interrupts rural travel by road and by air.

As elsewhere in the world, Covid-19 is not bringing about a ‘new normal’ but rather intensifying already existing trends in society. Covid-19 presents opportunities to authoritarian governments throughout Africa to extend their control of society. The same is true in South Sudan. The lockdown measures have further concentrated power in the hands of the security state in South Sudan, which has become increasingly powerful in recent years. Lockdown will also intensify the separation between a Juba-based political elite class with access to resources and the rest of the country, increasingly immiserated and struggling for basic resources. The measures announced on 28 April will do nothing to stop the spread of Covid-19, but may increase the spread of the sentiment that the political elite in Juba is acting only in its own interests.

About the author: Naomi Pendle is a Research Fellow based at the Firoz Lalji Centre for Africa ( London School of Economics and Political Science).



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Analysis: Can South Sudan Change Its Approach to Politics?

ANALYSIS By Andrews Atta-Asamoah


Salva Kiir, President of South Sudan, centre right, with Riek Machar, centre left, who was sworn in as First Vice President of the new Transitional Government of National Unity/Photo: Nektarios Markogiannis/UNMISS

(Thessherald)–The formation of South Sudan’s new unity government on 22 February is a major milestone in recent efforts to restore peace in that country. This is the first successful attempt to form an inclusive government since 2016.

The swearing-in of Sudan’s opposition leader Riek Machar and four other vice presidents was a relief not only to the South Sudanese people, but to the many regional and international actors involved in Sudan’s peace efforts.

Yet the diplomatic pressure needed to secure the last-minute deal has left many wondering whether the actors will be committed to the outcome of the process. Will the way ahead for the new unity arrangement differ from the failed 2016 attempt, and can it bring about lasting peace?

Despite the fragile nature of the unity government, there are numerous major improvements on the previous agreement that give rise to cautious optimism. Apart from the fact that the June 2018 ceasefire seems to be holding, the compromises the parties made in the run-up to 22 February are key.

Many believe the weight of the compromises made suggests some level of commitment to the process

Under intense pressure, President Salva Kiir Mayardit reversed his controversial decree to create 32 states in South Sudan and accepted a return to the pre-war 10 states. Machar also backed down on his earlier insistence on having his own private security on his return to Juba, accepting government protection.
This was significant given previous attempts on Machar’s life. In 2016 he had to flee on foot from Juba to the Democratic Republic of Congo after being pursued by government forces. Many believe the weight of these compromises suggests some level of commitment to the process.

And while Kiir’s government has had the upper hand on the battlefield against the various opposition forces, it’s failed to maintain a healthy relationship with key international actors and to sustain the international goodwill the country had at independence. The Kiir government’s lack of political will and poor human rights record has had a negative impact and towards the end of the pre-transitional period it increasingly slipped into an antagonistic relationship with major powers.
Regionally the lack of progress contributed to a wait-and-see attitude by some countries, including Kenya, which became notably absent from regional diplomatic efforts regarding South Sudan.

Meanwhile Machar’s opposition group has also been on the back foot since the collapse of the 2015 peace agreement, and has lacked the capacity to match the government’s military strength. The proliferation of armed groups and the emergence of leaders such as Thomas Cirillo Swaka and Paul Malong Awan to contest Machar’s dominance of the opposition space has also diluted the Sudan People’s Liberation Movement-in-Opposition’s (SPLM-IO) position as the go-to party for those opposing Kiir.

The current unity government is in the interest of both leaders, as it gives them new relevance
The government and the main opposition (SPLM-IO) were locked in a stalemate that would have been difficult for either to sustain in the long run. The formation of the current unity government is in the interest of both leaders, as it gives them new relevance. Many believe this could motivate Kiir and Machar to work together in the interest of peace, rather than against each other.

Despite optimism in some circles, however, there is still deep mistrust between Kiir and Machar. Machar intends to contest Kiir for the presidency, and it isn’t clear how Kiir might respond to this. The antagonism between the two over this issue helped trigger the 2013 crisis.

Bringing the two into the unity government without any significant changes to the underlying contestation between them effectively restores the status quo. The formation of the current unity government can thus at best be described as patching up South Sudan’s broken political space. This is necessary for interim peace, but offers no lasting solution to the country’s underlying drivers of instability.

It is an arrangement that assumes the two rivals will look beyond their differences to find a working formula for dealing with the crisis. Despite increasing the number of vice presidents, there’s no indication that this will generate any new ideas. Facilitators of the peace process must continue to build confidence among members of the rather large presidency.

The current configuration has effectively returned South Sudan to its pre-war political context. It raises questions as to whether the country’s politics can be reconstructed to revolve around the state rather than personalities.

The unity government can best be described as patching up South Sudan’s broken political space

One of the risks to the new government is that the opposition could again fracture if the expectations of the various interest groups aren’t met. The existence of armed groups outside the current process and outstanding security arrangements are also crucial matters that will determine the unity government’s success. Any defecting faction is likely to join the groups currently outside the unity government.

In a country with a history of political fracturing and transactional politics, managing existing interests, differences over emerging interests, and outstanding issues is a delicate balancing act. Any further splintering of the armed groups will offset gains made in forming the unity government and could derail the process.

A key lesson from current developments in South Sudan is that concerted regional and international efforts that support willing domestic initiatives can make a major difference. The regional consensus that informed the final push to end the pre-transition phase and the pressure that came with it should continue in order to sustain the unity government. Development partners must adopt a common voice in their messages for maximum impact.

The African Union Peace and Security Council should commend the parties for making the necessary last-minute concessions to establish the unity government. The council should also decisively reiterate its rejection of spoilers and its readiness to sanction any policy or action by individuals, entities and groups aimed at sabotaging peace in South Sudan.


Andrews Atta-Asamoah, Senior Research Fellow, ISS Addis Ababa This article was first published in the ISS PSC Report.