The beautiful ones are not yet born: Is it a dilemma over interests or overlooking natural justice; Or is equity on the cross?

Note to editor: Biel Boutros Biel takes a look at IGAD’s Protocol and the intertwining interests on South Sudan’s Crisis

By Biel Boutros Biel

1. Introduction

August 27, 2014 (SSNA) — I had an opportunity of going through the ‘Protocol on Agreed Principles on Transitional Arrangements Towards Resolutions of crisis in South Sudan,’ the final ‘Communique on the 27th Extraordinary Session of the IGAD Assembly of the Heads of State and Government on the Situation in South Sudan’ and the ‘Implementation Modalities for the Cessation of Hostilities Agreement Matrix.’ All these documents were dated as of 25 August 2014, in Addis Ababa, Ethiopia.

2. What is IGAD up to?

After reading through the documents, I recalled Ayi Kwei Armah’s novel; ‘The Beautiful Ones Are Not Yet Born,’ where Armah’s concern was that; though the independent Africa, from Ghana across the divide, was, by 1968, free at least, from the colonial yoke, yet, it was a mere materialisation of change of guards and that, ordinary citizens, only enjoyed empty memories of Independence Days! Is Armah’s narrative repeating itself on the IGAD-led peace mediation for South Sudan’s crisis? Is IGAD caught in a dilemma of telling the truth that may displease the ‘club’ or is the controversial discourse rolls on overlooking the rules of natural justice which are in fact rules of equity?

3. My Take!

In this piece, I tend to argue and put highlights on some of the provisions of the Protocol in question especially the underlying narrative which IGAD whether intentionally or by omission, did not pretend to cover. From the outset, I should thank IGAD for taking upon itself to think together with the suffering South Sudanese people, in an attempt to find solutions to the ongoing civil war in South Sudan. The fact that IGAD has been trying to mediate the warring parties, notwithstanding the ‘ups’ and ‘downs’ the mediation has had, yet, by keeping the torch on, is per se, a commendable job. Amb. Seyoum, Gen. Mohamed and Gen. Lazaro, you rock it ‘kabisa’!

4. Uncovered bad faith: emotions and interests?

In looking closely at the Protocol in question, from its preamble, it portrays a bad faith as the document was not given much editing. There are no errors in terms of language but no one cared to ensure that it was written in a manner that spacing was desirable. That is why it spells ‘about the’ as ‘aboutthe’ (paragraph 2), concerted efforts as ‘concertedefforts,’ ‘Member state’ as ‘memberstate, ‘IGAD Peace’ as ‘IGADPeace’ (para 4), ‘Envoys throughout’ as ‘envoysthroughout’ and some more unspaced words. These errors may seem just simple but in my view, they appear to mean two similar assumptions; firstly, the document might have not been drafted by IGAD but might have been drawn up by somebody who might be a South Sudanese or a person whose interests coupled with his or her biases and emotions, intended to have the document available and because of time for want for rush, it bears those editing errors. Secondly, if indeed, the document was drawn by IGAD based on the views of the stakeholders and parties at the negotiation as it proclaims, then it is right to conclude that, it might not reflect the original view of the parties and therefore, IGAD, has different intention which could rightly be said, has been revealed by other provisions cited in the protocol itself observed hereinafter. That said, how IGAD came forward with this document, represents some realities that I shall leave to the conventional wisdom of South Sudanese people.

5. Substance of the protocol: Is equity on the cross?

Words are very important, how they are used, matters a lot. Principle 2 of the Protocol, has some words emotionally charged which to me, show emotions of the IGAD’s members who drafted the document. In making a reference of who shall lead the so called ‘Transitional Government of National Unity’ and ‘Commander-in-Chief of Armed Forces’ they wrote in reference to President Salva Kiir as; ‘shall be the elected, incumbent President of the Republic.’ By adding the word ‘elected’ with emphasis, makes foolery of the intelligence of South Sudanese people. Was President Salva Kiir elected during this crisis and that some people at the negotiation should be made to know that there is an ‘elected’ President? South Sudanese know that President Kiir was elected and he has been the President of the Republic of South Sudan though his Presidency came into question since December 2013. By adding the word; ‘elected’ instead of mentioning the ‘incumbent President of the Republic’ shows that IGAD was sending a provocative message emotionally and that alone, uncovers the intention hidden in the rushed Protocol. Another shame was again in paragraph 2 of the preamble; which purports that the stakeholders are concerned to stop the ‘senseless loss of life, mass displacement and destruction of property.’This is quite an emotional provision and if I may ask; is there sensible loss of life, sensible destruction of property and sensible mass displacement? This unconsciousness in this document shows the realities behind the scene of IGAD. How much would it have cost the drafters to just say; ‘loss of life, mass displacment and destruction of property? It is an issue!

Principle 4 of the Protocol provides for the office of the Prime Minister (PM) to be nominated by the Sudan People’s Liberation Movement or Army In Opposition (SPLM-IO) under Dr. Riek Machar. The PM, according to Principle 5, shall work in harmony with the President. This is not in dispute but it needs no political philosopher to guess the intention of IGAD as to why in principle 6; they state;

the Prime Minister will not be eligible to stand for any public office in national elections at the end of the Transitional Period

Here is the bone of contention in which, even I think, needs no much thinking to realise that, there was and there is a problem in IGAD. I tend to believe that even an honest bodyguard of President Kiir or President Museveni, who for a minute, poses to think deeply about the humanity of all people, would say, ‘it is unfair provision’.

6. Why is this provision of barring the Prime Minister unfair?

Firstly, it proves that the protocol was stage-managed by a group of people within IGAD or without, while having in mind one person from the SPLM-IO as to fill up the office of the Prime Minister so provided for. In principle 4 above, to prove the ‘already decided matter at the back of the minds of IGAD members’ in making reference to the competence for the person to become the Prime Minister, a reference of ‘him’ has been made. Who is ‘him’ in this matter? Does it mean the SPLM-IO has no competent lady to take up the post? Certainly not! This is also gender discrminatory but the intention of IGAD now seems an open book to read. Taking them on their own words, ‘him’ could therefore, mean any one of the senior members of the SPLM-IO; however, to my mind, it does not need one to be a political philosopher to know that the IGAD’s referenced prepositon ‘him’ succintly means the chairman of the Opposition Riek Machar.

Unambigously, having unveiled that IGAD’s ‘him’ refers to Riek Machar as proved by the underlying intention uncovered, this, will now help my reader to clearly understand why there was a provision stipulated in the protocol that the ‘Prime Minister will not be eligible to stand for any public office in the national elections after the end of the Transitional Period’.

7. Why was that provision of barring the PM from standing in the elections put in the protocol by IGAD?

Firstly, one would not appreciate the argument right away without looking at the composition of IGAD.

With due respect to the rest of the members of IGAD, such as Ethiopia, Kenya, the Sudan, among others, it is imperative to crucially unpack the role of Uganda and South Sudan in IGAD, so as to bring to the fore, the tricky trajectories clouding IGAD’s approaches to the resolution of civil war in South Sudan.

Secondly; in a bid to project a clear role of the two countries, one has to look from the onset the narratives surrounding the ongoing civil war and cutting it nearer to the year 2013. Uganda and South Sudan’s political leadership have been in close military ties and Uganda’s army had been in South Sudan right before the start of 15 December 2013 crisis with intention to protect Salva Kiir during the awaited SPLM 3rd National Convention. By the wake of 15 December 2013, Uganda People’s Defence Forces (UPDF), just transformed its war-strategies to fight an internal war among South Sudanese alongside South Sudan’s Army; the SPLA and President Kiir’s militia.

IGAD mediators should have appreciated that, one of the principles of natural justice is that; no one should be a judge in his or her own cause. This simply means that, a person cannot sit to decide on a case where his or her interests are the subject matter and will be expected not clash with his or her official position. Commonsense would dictate that such a person is likely to favour his or her own side of the story. This is exactly what IGAD has done. Presidents Salva Kiir and Yoweri Museveni of South Sudan and Uganda have their troops on the ground fighting the SPLM/A-IO forces and with the sole aim of preventing the Opposition from overthrowing President Kiir. If IGAD allows the two Presidents to be in such summit which they rightly belong by virue of their positions as presidents, then it could have followed logically that IGAD should not have allowed itself to deliberate on South Sudan’s issue when the two Presidents are full participants and are in complete conflict of interests of preserving the position of President Kiir versus the interests of South Sudanese people. In such situation, Kiir and Museveni sat on their own case and have become judges on their own cause against the principles of natural justice.

Arguably, even if it were to be Jesus Christ being Salva Kiir and Museveni among IGAD heads of state and government, I doubt whether the Good Lord could have spoken a contrary view and without protecting his position as the President of South Sudan. Blantantly to say, it was an opportunity for President Kiir to see a document that gangs-off, his rival Riek Machar and Mr. Kiir was certain that the ‘club’s members, would pat him on the back; ‘he did it again.’ In fact he did it as he managed to have a provision,  slammed on the face of Riek Machar as barring him forever from standing in ‘any public office in future elections.’ Good Lord!(I don’t think this provision will survive soon)

In the above scenario, one would argue that Riek Machar was in attendance; I would argue that he had no similar legitimacy of manipulating as Museveni and Kiir, who have combined significance as IGAD members by virtue of their Presidencies and parties to the conflict, who are bound to protect their interests. This shows that IGAD has no intention to resolve South Sudan’s crisis but trying to avoid dealing with the issue differently as its approach is crowded by the protection of their ‘brothers in the club’. This is why; the vulnerable fish to be skinned was found to be ‘him,’ who unmistakenly, Riek Machar in this case, an intention which IGAD failed to conceal in the protocol. It is strange that though interests clouded the thinking of IGAD but putting such a bar on sombody, is unrealistic and have wider repercussions, costly and haunting.

8. What are the implications of barring the ‘assumed Prime Minister’ from standing in any public office in future elections?

I need to look at the implications not in the person of Riek Machar but as generally, from the viewpoint of the positon of South Sudanese law, regional and international human rights law.

Firstly, the provision of principle 6 of the protocol, if implemented, is very dangerous, in the sense that, it is a discrimination against individual and its spirit cannot survive constitutional muster. It is unconstitutional and against the very heart of South Sudanese supreme law; the Constitiution.

Article 14 of the Transitional Constitution of South Sudan 2011, provides for equality before the law and it goes further to prohibit discrimination on the ground of race, ethnic origin, colour, sex, language, religious creed, political opinion, birth, locality or social status. In view of the above constitutional provision, the person to be Prime Minister barred from standing in any national elections, has been discriminated on ground of political opinion and I would add; social status as well. Furthermore, if IGAD, Museveni and Kiir have in mind Riek Machar which truly they had, then I would add, he could be assumed to have been discriminated on the above mentioned two grounds and to also include his ethnic origin because there is no reason provided and in the thinking of Kiir and Museveni, the ‘Nuer factor’ in Riek Machar’s situation, presumably might have played the melody in the thinking of the duo.

Under regional and international human rights instruments, though South Sudan is not a party to some or all these, but they should be persuasively used in this argument to show the depth of the dangers of what IGAD had doctored in the protocol barring an individual from his or her natural right to participate. (It is mind-boggling as to why would IGAD choose to violate a known equality principle enshrined in their respective constitutions) leave alone the international human rights law!

Article 13(1) of the African Charter on Human and Peoples’ Rights (hereafter referred to as ‘The African Charter’) provides for one to participate in the affairs of his or her government directly or through a representative of his or her choice. In this case, it is strange that IGAD members, all of whom except South Sudan are state parties to the African Charter, could insert such an unpopular provision against the heart of the African charter.

Articles 16 and 26 of the International Covenant on Civil and Political Rights (ICCPR), respectively provides for equality before the law and outlaw any discrimination on any ground. Specifically, article 25 of the ICCPR, like African Charter, provides for one right to participate in one’s own government. Articles 1, 2, 6, 7 and 21 of the United Nations Universal Declaration of Human Rights (though a non-binding law) provide for freedom and equality, non-discrimination, recognition before the law as well as right to participate freely in one’s own government and public affairs of his or her own country.

With all the above national, regional and international human rights instruments prohibiting discrimination on any ground, it is strange that the members of IGAD allowed themselves to be misled to the extend of disrespecting clear norms of equality and instead of solving the problem but adding more fuel. Today, they might think of Riek Machar as the person Museveni and Kiir are happy to bar from standing but it will affect the South Sudanese at large because, assuming that Riek Machar becomes the Prime Minister, he could not be there indefinitely and would this unconscioable provision be applicable to another person? That is the start of another civil war!

9. Other observable points in IGAD proclaimed documents

I have seen some big jokes in the implementation matrix and addendum especially the unreluctant provision of the withdrawal of the foreign troops from South Sudan but since by concern is to point out the dangers of having an emotionally charged protocol and imposition of a provision contrary to South Sudan Constitution, regional and international human rights instrument, I tend to leave it to the conventional wisdom of South Sudanese at negotiating table. But one thing to add, the mere expansion of the current most incompetent Legislature in the region, as IGAD presuposes, serves as final insult to the South Sudanese people. The proclaimed TGoNU, may as it is, won’t work, the two years won’t be completed without a war and the causes shall emanate from the failure of resolving the causes of the current war. Besides, it appears to me that the incoming government if in fact it will come, shall be a government that consumes than develops, that divides than unites, the causes are on every wall and IGAD knows very well. I predict a very large government just because IGAD doesn’t confront the truth!

10. Conclusion

I wish to make some observable remarks to both IGAD and South Sudanese at negotiation and elsewhere. First, it seems to me, based on what I have been reading and how I continue to interact with some friends and colleagues in civil society in Juba, Addis and Nairobi, South Sudan’s crisis has become a kind of theater where all are to be on the stage to score to the top. This, in my view has presented difficulties to IGAD.

One would be right to say that, IGAD is caught in the worlds of conflicting loyalties; to please Troika countries as well as donors and United Nations that threatens with sanctions any time soon. Another observation; it seems there are many camps whose interests are not centred on finding peaceful solution to our conflict but to score political history hence, would continue to confuse IGAD for eternity. Another group has its interests on donor funding hence continue to design boisterious projects in claim for peace but in actual sense, are sponsored to cause a row in the negotiations so that the donor interests continue to flourish and experts continue to exist. Some more groups seem to be concerned on how their salaries and safety can be secured in Juba. That group, will sing non-stop; ‘justice, justice’ accountability’ when in fact, they don’t believe in it but rather singing so to avoid saying anything truthful to IGAD while others tend to project future leanings with the Opposition and still are at lukewarm with Juba regime. I agree with Jesus Christ that; ‘it is not those who say ‘Lord, Lord, Lord’ but those who do the will of his father, will enter the Kingdom of God’!

While IGAD is caught in between protecting the ‘boys in the club,’ and please the sponsored ‘international agents’  it is even more complicated when it seems the Body is not itself in terms of making its own documents, when the language clearly appears to be somebody’s else material; we can detect our wordings, don’t we?  That said, IGAD is in terrible dilemma which if they cannot come to their senses, they would continue to listen to dangerous ideas and advice which would destroy South Sudan.  Perhaps they think, ‘experts’. If the focus is on individuals and not on underlying causes of the conflict, I am afraid IGAD’s approach, will produce more battles and if different ‘monsters’ shall continue masquerading as civil society experts, or religious gurus, or rebel fighters, or diplomats, or Juba ministers, or assumed international experts, political elits, leaders of this or that, to hide their interests from Gambeila to Raja,from Abyei through Renk to Nimule, to mislead IGAD, I then continue to weep for my country and it would be true to say, unless IGAD realises this, I will agree with Ayi Kwei Armah that the ‘Beautiful Ones Are Not Yet Born.’ I am of the view that we must confront the truth and the negotiations on the table in Addis, are the way forward if IGAD observes the rules of mediation and only ‘at large’ we stop misleading IGAD through our hatred of individuals who even have weight and rights in South Sudan, the road is too long to reach together. Let’s face it together yaa jamaah! Stop proposing your own peace to IGAD; let’s stop the trivialisation of the whole discourse to our whims.

“Finally, I have always stated that, a nation that lives on the myths of denials of the bitter past and unconfronted present truth, sits on a timebomb which bedevils its future. To my mind, it is a shame for all men and women of conscience to stand aloof in the name of neutrality when the whole humanity is descendind into grave and near to extinction. I am convinced that, for the least of our brethren, we must choose the path least travelled and stand with those who cannot speak for themselves. Let’s focus on the causes of the ongoing civil war and resolve it amicably to help our generation and the posterity to live a life non-humiliated and with that; the rest shall fall in line. We cannot put equity on the cross for the sake of our own interests which won’t help South Sudan today and beyond. IGAD, wake up and face it!


The author, Biel Boutros Biel is an Executive Director of the South Sudan Human Rights Society for Advocacy (SSHURSA) and former Secretary General and Spokesperson of the South Sudan Civil Society Alliance but the views expressed here are his own. He fled to exile since December 2013 and is currently pursuing his Master’s of Laws Degree (LLM) at the University of Pretoria, South Africa. He can be reached on: [email protected]/[email protected]

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