By Peter Reat Gatkuoth
“Peace does not mean the total absence of any conflict. It means the absence of violence in all forms. Peace exists where people are interacting non-violently and are managing their conflict positively.”
Abstract
February 20, 2020 (SSNA) — The violent conflict that began in December 2013 until 2016 is the gravest challenge, facing South Sudan’s fragile peacebuilding and state-building processes. The humanitarian costs of the crisis continue to be extremely high, with one in four people displaced, four in ten severely food-insecure and thousands of homes destroyed, coupled with severe flood country-wide. Emphasis on humanitarian and emergency relief has shifted the focus away from development agenda/assistance. Low state absorption capacity and donor concern about the diversion of funds amidst allegation of widespread corruption have also contributed to the limited availability of resources for state capacity-building.
Negotiations to facilitate the war-to-peace transition are more than a means to end armed hostilities. They are opportunities to come to terms with new political, constitutional and economic arrangements to deal with the underlying conflict and lay the foundations for a more inclusive political pluralism and solution. Both the contents of the agreements and the characteristics of the process affect whether peace negotiations can serve as the bridge to sustainable peace and a responsive government. The question of who participates, to what degree, at what stage, and in what capacity, is therefore critical at the movement of peace negotiation and arrangement of an inclusive government.
Peace process (agreements/disagreement) can be negotiated and the stakeholders/leaders can still argue and make their points heard but with back up from the public opinions. In the Africa Continent and across the world, research indicated that negotiations have helped to bring peace talks into the public domain, enabling a wider range of people to make suggestions and to continue negotiations even after (3) years of signing the comprehensive peace. Negotiation and State-building is a continual process that can take over years down the road until a certain degree of a tendency for more legitimacy and openness in the agreed provisions is reached. In many cases, the public could better understand and possibly accept the reasons for compromises should the leaders accept and involve public opinions and suggestions in peace process formation.
This small note/article, therefore, attempts to look at how the peacebuilding process in South Sudan is affected by the constitution as well as the political structure. The analytical notes focus on the executive and legislative branches of government as well as the traditional and customary arrangements since they hold important roles in the grass-root peacebuilding endeavors. The article further looks at the present electoral system and its impact on the process of peacebuilding and lastly the public participation in this peace process formation.
Embryonic political and economic institutions in South Sudan have since 2013, driven by identity-based competition, been wiped out by a number of disputes over power and resources. Once again hope about the possibility of lasting peace was created with the agreement between President Salva Kiir and the opposition leader Riek Machar, signed in August 2018. This is just one step (Peace process) on a long and precarious path to stability and prosperity.
The tensions have not been halted (in society) so far by national political intervention or international arbitration. What will it take for stability to return and happen, facing potentially insurmountable odds? The answer lies in national and regional campaigns to create unity. As recent history has shown, a focus on high political negotiations in the current environment (negative peace) will not provide a long-term solution. The national peace process is unable to avoid urban instability drivers: from decades-old tensions to everyday economic challenges, as thousands are killed and millions are displaced by highly decentralized wars across several areas.
The article takes a deep dive into the need for strong institutions as an incentive for peacebuilding in South Sudan to bridge and step over negative peace. In so doing, the paper reviews the constitution of South Sudan in regard to how it affects the government’s ability to attain peace. In addition, the paper dwells in the political structure, decentralization, traditional and customary arrangements, electoral system and the executive and legislative branches.
The Constitution of South Sudan as an Enabler of the Peace Building Process
On 9 July 2011, when South Sudan declared independence from the Republic of Sudan, in the midst of thundering crowd cheering; President Salva Kiir Mayardit signed an over-sized red text, the Transitional Constitution of the Republic of South Sudan (TCRSS) as a symbol of the new state’s existence. Soon afterward, the president appointed the National Constitution Review Commission (NCRC) to draft a “permanent constitution” that was expected to be fully adopted in 2015 while the development period was extended to 2018. Although it complies with the declaratory international law criteria for a “government,” the current destructive political and military (re-) negotiations shown that there is a lack of infrastructure, a threat of asset cursing, a militarization of society and fractured systems of authority has not yet been addressed and/or developed a mechanism for constructing internal sovereignty.
Constitution gives direction, guidance and it allows the Republic to balance and check any ideas or concepts as it is the only tool guiding the activities conducted in the nation. It is “the basic principles and laws of a nation or state that determine the powers and duties of the government and it guarantees certain rights to the people or it’s a written instrument embodying the rules of a political or social organization.” In reversing the notion that the Constitution represents all the will of the people, constitution-building in South Sudan must be seen as part of internationalized efforts to “post-conflict (re) construction” and its a vital normative instrument for shaping the future of the State in the larger context of the “rule of law” (RoL). It is about establishing sovereignty to control national boundaries, to clearly define an interior territorial boundary and to convince the people that the imaginary interior exists (Andreson, 2006). Notwithstanding though that the joint efforts of many regional, national and international players to establish peace and constitutional ties, non-violent and violent political and military talks on the form of statehood for South Sudan should still continue and supported if we wanted to fix South Sudan.
There is no country that functions effectively without a strong and permanent constitution. As we all know that the political players (parties) use “the 2011 Transitional Constitution” as an instrument of legitimization. This method tends to intensify both the political fight and aggressive negotiation. There is a general problem to be addressed in this aspects and the issue to be addressed is the question of whether a ‘permanent constitution” meant to be the ‘supreme law of the land’ and if it is needed by the new unified state of South Sudan, representing national values and ideas? Those two examples of Statehood talks should have been addressed and discussed at different forums. First, a national peace conference and then the constitution-making procedures and peacebuilding process in grass-root communities in South Sudan (Ghai, 1972). For Example, the Equatorian regional peace conference on the land dispute, for example, sheds light on one of the controversial issues, “land ownership,” about which there is a multitude of views and definitions.
Nevertheless, it should be decided in the “permanent constitution” in the course of the process. A concrete example of the plural notions on the essence of land tenure is the study of the historical and socio-economic factors that led to the conflict and the multiplicity of discourses raised during the peace conference. No local and certainly no national social consensus has yet been achieved in this regard, and a ‘processual solution’ could be an option, especially in post-war situations with such heterogeneity of factors and actors. For example, in some parts of the world, the land belongs to the government. Should the land of South Sudan remain under ethnicity/community or it’s the government land? This concern can be debated in the parliament and public consent should also be required to reach the consensus.
These nuances have not been taken into consideration in South Sudan’s constitution-making process, which, as we will see in the second part of this article, has been pushed through at a huge speed by several national and international players. The current national normative frame of reference for the ‘transitional era,’ the TCRSS and its formation process act as the transitional tools should be thoroughly re-constructed, revise and review to address the citizens’ interest and for the societal benefits. Therefore, the proposals and the principles that can be written in a “permanent constitution,” as was shown, lack regional and even less national unity.
The examples found from the peace conference and the constitutional process have shown that debates on statehood should continue and should be ongoing in South Sudan, a deeply segmented nation. Since there continue to be a variety of meanings and interpretations of property and land distribution, questions such as “land ownership” have been completely neglected and ignored. In the case of the peace conference discussed above and at consultations of the public on the constitution, it was evident that there was no national consensus either on the existence of land ownership and how borders were defined or on the form of statehood and the manner in which different interests and demands were dealt with. The peace conference resulted largely in a bureaucratic strategy that required the parties involved in the negotiations to proceed without deciding the concrete options that might have pushed other people from the negotiating table until the further debate is scheduled in the public house.
South Sudan government agents have been forced to rely on themselves and have begun rethinking of the constitution without massive international support or ideas of how to create a permanent constitution. The ‘crisis’ shows that South Sudanese players must comment about the internal political complexities and the root causes of the constitutional crisis and discuss the key issues that should be part of the “Permanent Constitution.” Without a supreme land rule, while not using a constitution as a sign of government and thus relieving expectations to give one rapidly, the long transition period through 2020-2025 may seem like a first step and a step of the initial process which is yet deep on the practical realities.
Political Structure and Decentralization in South Sudan
Transitional Constitution 2011
In July 2011, Southern Sudan became South Sudan, gaining recognized independence. The Legislative Council of South Sudan promptly adopted a Transitional Constitution. The Transitional Constitution follows closely the government system, laid down in the Interim Constitution, outlining the principle of “decentralized governance” and establishing three levels of government (USAID, 2010). The Central Government is responsible for the execution of national functions (defense and tertiary education). The States were responsible for the provision of secondary services and for the support and supervision of counties (world Bank, 2015). Although the decentralized form of government is ostensibly being maintained, critics and authors argue that the transitional constitution is simply a roll-back to the system of oppressive regimes and a more centralized government of Sudan. Perhaps its time to look back and review the system of governance from South Sudanese perspectives which will involve the call for political pluralism and multicultural considerations.
The government system has to be structured from the grass-root level where services have to be delivered effectively. The three levels of local government are to be provided and should be clearly stated and redirect their function in the LGA (Local Government Act). In the LGA, payams are designated as ‘the coordinating unit of a County exercising delegated powers and bomas are defined as the ‘fundamental administrative unit exercising the ‘de-concentration powers within a County’ (world Bank, 2015). The LGA provides that a commissioner shall head each county and a mayor shall lead each city/town and municipality and the legislature shall have counties and towns with up to 35 members directly elected by bomas/quarters universal suffrage.
The Commissioners head a Board of Executives consisting of directors and departmental heads. This practical arrangement seems not to yield a fruitful exercise to what was written in the LGA-book, and most commissioners are mingling in the middle without doing what is in the normative and regulatory book. The additional objective and aim of the county are usually to raise funds through “government grants, municipal taxes, civic donations, grants and loans from organizations and individuals.” Nevertheless, as suggested by UNDP, the tax and payment obligations and privileges of the different levels of the government need to be explained and the public deserves to know from their local authorities (National, States, and Counties) the formality used in the systems of taxation and the grants. Government grants, which came into being in 2008, should be used as an important tool for developing local government in an environment where economic productivity, the fundamental foundation for taxation, is severely limited.
Local Government Board
The local authorities are supervised by the Local Government Council. The mission of the Local Government Board is to make a new, inclusive intergovernmental process centering on people (Monts, payams, Bomas). Local Government Board functions shall be:
- The development of relevant local government system designed principles to promote self-governance at the local level
- Local government growth capabilities
- The co-ordination of local management and service provision
- The preparation of bills for municipal government.
Nevertheless, in a 2010 report, the LGB had little resources to execute the LGB tasks and no operational tracked or evaluated programs. However, the LGA calls for the involvement of the general public.
Effectiveness of the Decentralization of Political Structure in South Sudan
To promote the central government, the transitional Constitution is seriously criticized for effectively reversing the decentralization process as I can say earlier. Cope (2014) claims that the political elite of South Sudan did nothing much, but they support the transition of the government of Khartoum from the 2005 CPA and the provisional Constitution and in general support the devolution to the states and local governments. It meant South Sudan had to give its States and localities the same policies and the same rights that it requested from the Sudanese government.
The LGA (South Sudan) calls for the involvement of the general public. The direct elections should be made to commissioners and legislative bodies, a system that strengthens the legitimacy of the states and the counties. In this regard, the assemblies have a major role to play and to ensure people across the town are represented at different higher government levels. From the payam to county councils and state legislatures to the national parliament’s two chambers. This could play a major role in making people from various ethnic groups think that they are active in the country’s overall government functions and give state credibility.
At the end of 2014, the Commissioners are appointed. In some States, there were consultations on nominations to ensure adequate diversity and ethnic equality, as well as to make it easier for populations to support a commissioner that they could otherwise reject. Nevertheless, their immediate appointment means they are close allies and ‘economic associates’ of state governors. In addition, with the approval of the governor, they are quite influential and thus influence the actions of the county executive directors and staff. Not every county had legislative councils by the end of 2014, however, the representatives of those counties were named rather than elected by citizens of the state. The absence of lawmakers by then threatens the willingness of people to keep county governments accountable.
Executive and Legal Branches of Governance
Separation of powers is a basic constitutional law principle allowing separate government officials, legislators, and the judiciary in order to avoid misuse of powers. Each division has certain powers to test and balance all other branches. In Chapter 3 of the TCRSS, the South Sudan transitional constitution (TCRSS) narrowly specifies that “the division of authority will direct devolution and control exercise” in the Decentralized Governance System. Still, Article 55 calls for the exercise of regulatory duties and oversight of the government by the National Parliament and among other issues. Nevertheless, South Sudan is seriously unwilling in action to enforce this fundamental principle of separation of powers due to the lack of adequate constitutional provisions in order to achieve such provisions.
At present, some ministers of the government of South Sudan (executive members) continue to act as parliamentarians. They hold parliamentary meetings, exert influence and take decisions in the parliamentary term, and there is no legal clause to prohibit them. However, the new “revised bridging proposal” of IGAD specifies, on one hand, for the duration and security of offices of the next parliamentary term, which enshrines that the transitional National Legislation Assembly (TNLA) will run concurred with the revitalized Government of Transitional National Unity (RTGoNU) before elections are held.
In accordance with the article 8.2 of the ARCSS, the powers, duties, and obligations to establish and terminate a state of emergency or declare war shall be instituted by the President in accordance with the TCRSS (amended 2015) and shall require the consent of the First Vice President and the Vice President. This again is a problem at the moment as there is a new position in the HLRF’s plan for a third vice president and the conditions on the ground have changed considerably since the signing of ARCSS in 2015. People have switched sides and there have arisen new political and opposition groups. At the lower levels, Section 101(j) of the TCRSS still remains controversial as it gives the perspective leaders the power to remove a state governor and/or disband a state legislative assembly in the event of a crisis. Both ARCSS and the current “bridging proposal” are silent on this provision (Article 48, TCRSS).
Traditional and Customary Arrangements in South Sudan
Perhaps it worth to argue that its important to recall back our effective traditional court systems even though the traditional system needs a serious review and modernization. There are some gaps in the traditional authority arrangement in the Local Government Act. The literature highlights the diversity of traditional systems in South Sudan, from chief bodies, conflict resolution, customary legislation and practice of belief frameworks (Idris, 2017). The native administration’s traditional authority is composed of numbers including hierarchies of tribal leaders and their subordinates, elders and public opinion leaders. Santschi (2014) describes the different chiefdom institutions in South Sudan (varying from area to area) as well as the dissimilar rules followed in different areas for a succession of chiefs. In some areas, chiefs are elected while in others they are selected from chiefdom families (Santech, 2014). The executive and legislative authorities are joined by a third body as the traditional administrative bodies that also have “local laws and regulatory” executive competences.
Chiefdoms in particular and more specifically, Paramount head of the region, Head of CEO at the Payam level and Executive Chiefdoms at the Boma level, are considered executive bodies of traditional authority. Terms of reference such as the Kingdom or Chiefdom depend on the regional organization types and branch structures. Chiefs are meant to be elected according to traditional practices. All eligible voters in a Boma, form the Boma Assembly. The Boma is the only level that is the exclusive domain of the traditional authority. “The Boma shall be the main domain of the traditional authority where traditional leaders perform their administrative and customary functions.” The Payam, on the other hand, “exercises delegated powers from the County Executive Council” (LGA, 2009).
In most cases, the governmental administration is headed by the Payam administrator, whom I observed in Juba County, Torit County, and Magwi County, though the position is not mentioned in the Local Government Act. There is no legislative or executive body at the Payam level aside from the Head Chieftainship. The role and the competencies of the Chiefdoms, however, are highly unclear and unexplained. In addition, the Local Government Act further specifies the role of the Council of Traditional Authority Leaders at the GoSS level; it should, inter alia, “provide a forum for dialogue […] on matters of customs and traditions, intervene to resolve inter-tribal disputes and advise all levels of Government on matters of traditions and customs” (LGA, 2009).
In contrast to the executive branches at the local government level, traditional governments form the judiciary, the customary law is to have the Customary Practice Council regulated in the courts of the countries of Bomas, Payams, and Counties. The Local Government Act lays out a Customary Law Board that “has the highest authority in the county in customary law” (LGA, 2009). This comprises as follow: – the Chairman of the county chief, all the Members of the County, the Council President, three local leaders, three women and a member of the young people. This addresses traditions and customs and is responsible for regulating customary law and hiring the members of customary law courts, however, the Councils of Customary Law are not yet in existence ((Section 94, LGA 2009).
Any government system of election usually depends on its law and regulation introduced prior to the election. For the election to be effective and gain credibility, the process of putting regulation and rule in place has to start earliest. Most significantly, free and fair elections are an essential element in all modern democratic societies. It is therefore not surprising that elections are primarily researched by scientists of democracy and governance. Conflict scholars, however, have fewer interests in the democratic merits of elections per se than in the implications of elections, particularly for inter-ethnic relations, on civil peace and political violence. In this note, I take the viewpoint of conflict studies. The standard of democracy is less of my concern, but the effect of elections on the prospects of peaceful cross-ethnic ties.
International players plan to play an important role in fostering peace and security (particularly in mediation and peacekeeping) and providing humanitarian and monetary support in South Sudan, which has been ravaged by the conflict (Radon, 2014). The Intergovernmental Authority on Development (IGAD), working under the aegis of the African Union (AU) was the most influential foreign player. From the beginning of the conflict, IGAD took the role of peace-builder and set up envoys for mediation negotiations (Radon, 2014).
The 2015 Peace Agreement on Conflict Resolution in South Sudan (ARCSS) was one of these talks but did not hold it despite the IGAD’s deployed implementation teams. Different IGAD countries have played important roles in the situation that is unfolding. For example, Uganda, Ethiopia, Sudan and the UN-hosted Solidarity Summit for Refugees on 22-23 June 2017 demonstrated Uganda’s role in the hospitality of displaced persons (Brosché, 2016). Ethiopia and Kenya also played an important role by welcoming refugees from South Sudan and they demonstrated their commitment and their contribution to establishing peace in the region. Therefore, East Africa is one of the world’s fastest-growing migrant cities, demonstrating how much the crisis has impacted and affected the neighbors of South Sudan.
The international community is largely on the view that the country needs to concentrate on an inclusive peace process instead of polls and extending its presidential terms on the peace process. South Sudan, because of the uncertainty of the implementation of the key election clauses of the Agreement on Conflict Resolution in South Sudan (ARCISS), has been warned by the African Union that free and fair elections are difficult to end after three years of conflict. In the lack of any reconciling gaps in political dialogues, the United Nations rejects the South Sudan government’s plan to proceed with polls in 2015.
Miamingi, a law expert from South Africa, argues that elections are not instruments for peacemaking, but can only be held in South Sudan is stable and safe, adding that more than half of the population already walk to protect civilian sites and camps for refugees. According to ARCISS, the reform of the National Election Act in 2012 which was expected to take place within six months of its signing and has not yet taken place is missing links that almost eliminate the possibility of an election in South Sudan (ARCISS reports). Peace and truce in a country that enables its people to participate and vote is the most important signal for the conduct of elections. The current instability that has led in several parts of the country to mass displacements will jeopardize political participation. Elections also would cost an almost bankrupt country a lot of money, and it is certainly a challenge to hold a campaign. Others claim that the South Sudanese urgently needs stability, protection, security, and water and these essential needs should be prioritized rather than immediate call for an election if the leadership of the country wanted to change the image of this nation internationally.
Public participation in the Peace Building Process
Amidst deeply imbedded social trauma and residual mistrust within the communities of South Sudan, public participation can provide a space for high risk and marginalized communities to renegotiate their post-war identities and concerns (Sandhu, 2014). Through public participation, they can be invited to provide input into the design of government structure (Sandhu, 2014). The approval of the voices of the people must be heard in order to shape the course of a nation in the building of peace. The people will help to guide how their country is governed by political participation. Activism would also help to set the political agenda and drive a government in the right direction. It is a bidirectional relationship that benefits all parties. Those involved in political affairs have a window on the state as it helps the people to ensure that policymakers meet these needs. Whether it is by lobbying, debate, campaigning or by polling; voices are heard in many different ways.
In 2010 when South Sudan had yet to become an independent country, the last general election in South Sudan was nine years earlier. The nation had participated in the only other voting process which was the referendum that granted independence. Nine years ago, very few of the MPs elected to the senate had visited their constituents. Few do not even know the issues and concerns in the constituents they represent. The house of commons never asked them to conduct a system of consultations with the public so that any political policy or course could be accepted by the people. In addition, political policies are debated and determined entirely by the executive branch of the government. The senate does little, leaving parliamentarians without a voice or power, with honorable names and a small income. Apart from the members of individual MPs in parliament who represent the interests of their constituents, the opposition parties are to be influential in representing the voices of the people and ensuring government is in control and stability. In South Sudan, that is not the case. We have armed groups that exercise power without people’s consent instead of strong opposition parties. There is little or no impact on the affairs of the state on the formally elected opposition parties.
In order to raise awareness about a political agenda or situation, individuals can otherwise engage in a political process by lobbying. This could take the form of peaceful protest, a petition or an opinion paper, public lectures ( for example, Fixing South Sudan forum), and the collaboration of community and activist groups. The people of South Sudan once did well, but things have changed over time. Discussing politics with family, friends, and colleagues is one of the most popular and open ways in which people can engage in their country’s political system. This is a field in which the people of South Sudan shine, with a balanced discussion of politics since time immemorial. Although these meetings are still being conducted, they are often behind closed doors and often prone to chatter rather than serious discourse. The debate around social media illustrates the transitions and no longer gives people the opportunity to talk about politics frankly, as they did. Citizens now seem to want to avoid talking openly about anything. Hence, progress stability comes when ideas are put together and turn into bidding policies and proposals.
This reduction in attendance was clearly attributed to the conflict within South Sudan. It took precedence over usually existing political processes, including a general election. Without an extended term of office of the public they are to serve, members of parliament exist. Some have supported the uprising and therefore are no longer necessarily seeking voters’ consent because no vote is expected. However, when the war began in 2013, people fought a serious social media war, which led to both the tension and the actual fighting on the ground. Citizens waged a war of words; verbal animosity that usually went down tribal lines. It lasted for some time or years until people were tired and lost interest from both sides. The online battle could have prevented more voters from active political participation. The majority of South Sudanese people think that public participation is a central component of nation-building and adds to the integrity of the Constitution, as the basis for peace-building mechanisms rests in the Constitution. The first two steps in the constitutional review process in South Sudan which included frameworks for consultation with grass root and marginalized communities often include public participation (the citizens’ driven agendas).
It follows from this document that the TCSS is fresh and has yet to be applied by the courts. It has not been widely studied or published in academic circles. Nonetheless, the TCSS guarantees the separation of powers, the independent system of government and a comprehensive Charter of Rights as shown. The core and critical positions of the TCSS are its key shortcomings. In terms of the political structure, the GoSS uses the local governance system of South Sudan, which includes both formal state structures and traditional bodies. The structure of three tiers of local authorities faces severe capacities and resource constraints which are reflected in its poor performance. Since colonial times, local governments have played a part in the collection and payment of taxes. But traditional authorities have been considerably undermined by the previous civil war (1983-2005) and there is a lack of precise definition about the role of chiefs in the local government system.
A path for peace will require multiple interventions addressing political, economic, social, cultural and psychological needs. But any peace player urgently needs to ask if their contribution is the intertwined, global crises in South Sudan. There is actually a lack of this kind of thought. In order to do so, peace actors need to engage in meaningful multi-level conflict research, be innovative in determining how to collaborate with or supplement various approaches, and build constructive ways to share their insights and findings. They also have to address some challenging pragmatic and moral dilemmas of honesty and integrity in order to ensure that peacebuilding is not only responsive to conflict but also leads to long-term peace and stability. In the end, only South Sudanese can deal with their own problems and therefore they must have peace efforts and problem-solving. Peace players from the bottom (bottom-up approach) to the top should take this into consideration and understand their own position as facilitators.
It’s a daunting task, but in the villages, towns and livestock camps around South Sudan peace is being achieved each day, with plenty of entrance points. Donors and peace-builders have done much in South Sudan, but our strategy must be updated and some methods of addressing peace-building change changed. The adoption of multi-level, inclusive and long-term peace approaches designed to engage all South Sudanese would be a good starting point.
The author is a citizen of South Sudan and a human rights activist. Please do not hesitate to reach him at [email protected] if you have any concerns or ideas to share with him.
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