The fate of the transitional process in South Sudan

Mehari Taddele Maru, For Addis Standard

Recent Clashes and Measures threaten Peace Agreement

The recent clashes in and around Juba, Raja, Wau and other places have come as a serious threat to the establishment of the hard-won peace agreement for South Sudan. To be clear, the Transitional Government of National Unity (TGoNU) was not an assurance for durability of the peace agreement. Rather there was a clear understanding that the transitional process was brittle, unpredictable and volatile. A few weeks before these clashes, in contrast to the UN assessments of the implementation of the peace agreement, the JMEC expressed deep concerns regarding developments in the South Sudan peace process. In addition the AU indicated the lack of even minimum gains from the peace process. The lack of progress in the implementation of the Peace Agreement signed a year ago, particularly the delay in the demilitarization of Juba, has been a cause of grave instability and insecurity on the ground. In a situation where offices and posts are stuck with the huge economic interests of individuals, the probability of the military defending and actively becoming involved in the country’s partisan politics is high. In the short-term, the payment of salaries to the public service, including the armed forces, will be crucial for the stability of the country. Threfore, the military is quite likely to impose its will and act beyond  the purview of the state institutions. If the current crisis remains unabated, the role of the SPLA could be expected to increase in domestic politics. If not an outright coup, this development would mean that the government will increasingly fall under the direct influence of the SPLA, rendering the Transitional Government ineffective. Consequently, the SPLA faces further grave military and elite fragmentations along ethnic and geographic lines. With continued increasing pressure for the implementation of the Peace Agreement, clashes similar to what has already taken place are likely to increase.

Hoping for the Best, IGAD PLUS needs to be prepared for the Worst

No scenario, including total civil war, should be excluded in any planning by the guarantors of the Peace Agreement, such as IGAD, the AU and UN as well as the Joint Evaluation and Monitoring Mechanism (JMEC). No matter who takes direct responsibility for the recent clashes, the guarantors of the Peace Agreement are also responsible for the failure to apply any pressure to the Parties to the conflict. The escalation of the clashes could cause ‘spill over’ effects in countries sharing kin communities, mainly Sudan, Ethiopia, Kenya and Uganda. Escalation could also accelerate the existing ‘mutually assured distrust and destabilization’ factors among neighbouring countries in the region by taking sides with proxies. This would drain the meagre resources needed to address other challenges in the region.

Is replacement of both leaders possible and could that provide a solution?

Some critics argue that the two primary leaders as well as other leaders of the armed groups should be excluded from the transitional process. Other observers, in similar tone, explain that without the political will of the two leaders, the peace process will fail. In the first place, if there was mutual trust and political will on the part of its leaders, South Sudan would not have experienced these conflicts, and there wouldbe no need for transition. It is also self-evident that the leaders of South Sudan have diminished their power bases considerably due to their arbitrary actions alienating a significant number of communities. Burying his head in the sand, President Kiir and a smattering of individuals from the opposition ranks believe that he is able to lead South Sudan to peace and stability without the participation of the opposition forces. If President Kiir could do so, he would have done so by now. Failing to achieve stability, the international community and regional Pan African institutions mediated the crisis, and established a transitional process to solve the conflict and power struggle, through a democratic election to be organized at the end of the transitional process. The transitional process is meant as a period for preparatory activities towards seeking a democratic way to  solve the power struggle in order to identify legitimate leaders to govern the country. Such a transition is not new in the region. Kenya, after election violence in 2007, went through a similar transitional process that lead to a relatively more democratic election process and improved stability.

Is the appointment of Dr Machar compatible with the Agreement?

Is the move by President Kiir to replace Dr Marchar with General Deng legitimate? As it is procedurally illegal, the appointment is thus illegitimate. The peace agreement is clear. While there have been several political figures of the SPLM who had serious differences with President Kiir, nevertheless, only Dr Machar chose to engage in a direct political struggle for the presidency. Therefore,  the mediation group recognized three groups (SPLM in government, SPLM in Opposition, and Former Detainees),  but the major actors were the leaders of the first two groups. The mediation process has defined the major actors who constituted the various transitional institutions, such as the JMEC, the Transitional Government of National Unity (TGoNU) and so on. Thus, changes to the leadership of the parties to the Peace Agreement should not be taken lightly. The JMEC, closely supported by the guarantors, needs to ensure that any change in leadership of the parties to the agreement, need to be made only in a transparent, free and fair election process. Overshadowed by the clashes, recent reported changes in the leadership of SPLM-IO took place in Juba in the absence of Dr Machar and many of the SPLO-IO leadership members. There were alsoseveral reports of intimidation and torture. Such actions do not meet the required standard for transparency, and fairness. That might be the reason why the JMEC found it very difficult to immediately endorse the replacement of Dr Machar by General Deng.

The speed of the replacement of Dr Machar by General Deng indicates that the recent clashes might have been deliberately fomented and instigated with or without the knowledge and approval of President Kiir. Therefore, it appears likely that President Kiir either exercises limited control over the various armed elements or is being influenced excessivelyby the various forces. This situation merely emphasises the illegitimacy of the changes that have been introduced in recent days.

As the leading guarantor of the Peace Agreement, the Inter-Government Authority on Development (IGAD) has met and, through its Council of Ministers, condemned the clashes and the attacks on civilians and United Nations personnel and property. It called for the cessation of hostilities, protection and opening of the airport by troops of the UN Mission in South Sudan (UNMISS), and access to humanitarian aid. However, the most far-reaching of the IGAD decisionswere the following two: the establishment of an intervention brigade from IGAD countries to secure Juba within a revamped mandate of the UNMISS; and the need to hold responsible those who contributed to the recent clashes and, consequently, deaths and destruction of property.

Did the IGAD PLUS provided a political direction for South Sudan?

Some commentators also question the political strategic direction of the intervention brigade proposed by IGAD and endorsed by the AU and UNSC. Nonetheless, the political end state of such intervention is clearly provided for under the Peace Agreement. On the political front, the end state of the Agreement is ushering in democratic government through various constitutional and institutional transformations. The Joint Monitoring and Evaluation Commission (JMEC) is authorized to oversee the political transition of South Sudan towards a democratically elected government that will replace the Transitional Government of National Unity (TGoNU). Thus, the ultimate aim of the Agreement is to empower South Sudanese citizens to hold their political organizations and politicians politically accountable.Furthermore, the political strategy of the protection force could be to create conditions for effective implementation of the peace agreement under the transitional process. This could include protecting the JMEC and transitional institutions, and facilitating their work, particularly duties relating to the Ceasefire and Transitional Security Arrangements, the  Monitoring Mechanism (CTSAMM), the TGoNU, and the protection of civilians. Within UNMISS or outside the protection force, it is essential to have both defensive and offensive stabilization. Democratic constitutional transformation of the armed elements of the various liberation movements is also essential for nation building and the creation of durable state institutions, but this will be a medium-long term plan. It is one of the tasks of the transitional process. For this very reason, it is important to prevent the total collapse of the transitional process in South Sudan through the employment of all tools available. Some of the tools to be employed are already inbuilt within the Peace Agreement of August 2015. To effectively implement these two momentous decisions, what is needed is firm, but fair implementation of the Peace Agreement, as it provides a clear political directionand inbuilt mechanisms for both military intervention and judicial accountability.

Deployment of a Regional Protection Force

The JMEC depends on collective political backing and financial support in order to discharge its mandate for ushering South Sudan towards a stable and democratically elected government. Hence, the JMEC does not have all the powerit needs to put effective pressure on the various factions, and particularly on President Salva Kiir. For this reason, the TGoNU needs to work, as the JMEC cannot exercise the power of government. Missions in Juba and the IGAD PLUS countries have long-term entrenched national interests in South Sudan due to regional peace and security concerns or economic implications, but the degrees of their leverage tends to vary. The international diplomatic missions in Juba do not have the clout they need to put effective pressure on the various factions. The EU and its special envoyhas a limited engagement and role in South Sudan, while they have had more robust rolesin  Somalia and Eritrea. The UK’s influence in South Sudan on conflicting parties is low. Consequently, the EU and China are highly likely to support the  IGAD decision.  Only some Members of the AU, IGAD and the UNSC, and in particular the USA, Ethiopia, China and Uganda could lend their weight to ensure political accountability. The JMEC is dependent on political backing, not only from individual embassies in Juba, but also from the AU, IGAD, the United Nations and members of the IGAD PLUS, acting collectively as guarantors of the Agreement. However, political accountability is unthinkable in a country that has surrendered its sovereignty to an armed group. Thus, judicial accountability in some form is necessary.

Judicial Accountability: time for the hybrid court?

With regard to judicial accountability, while the JMEC and the various guarantors work on political accountability, the Peace Agreement requires the establishment of a Hybrid Court for South Sudan that can ensure judicial accountability. The Peace Agreement requires the establishment of a Hybrid Court for South Sudan within six months of the establishment of the Transitional Government. Composed of South Sudanese and other eminent African jurists, such a court has been mandated to prosecute those involved in the violation of international law since 2013 and such a mandate extends until the end of the Transitional Government. With the aim of holding those responsible for the recent and previous clashes, deaths and displacement, the Court could for the first time enjoy universal political support within the IGAD PLUS. Previously, the idea of a Hybrid Court did not gain full support due to the concerns of some countries that such a court would delay the peace process. In actual terms, most of the top brass of the SPLM and SPLA may have to face the Hybrid Court and, therefore, preparations to introduce such a court need to take that into account. IGAD PLUS could provide the necessary political support for the establishment of the Hybrid Court. With actual or potential indictments by the Hybrid Court, the latitude we have witnessed in respect of the leadership of South Sudan to act at will, would be effectively curbed. By providing a deterrent effect on governmental abuses, the Hybrid Court could help ensure that the leaders of the conflicting parties respect the Agreement. The primary responsibility for the establishment of a Hybrid Court rests heavily on the Chairperson of the AU Commission and the UN Secretary General.As its permanent legacy, in addition to the dispensation of justice and the deterrence of similar crimes in South Sudan and elsewhere, the Hybrid Court may also consider building up the capabilities of the South Sudanese judiciary and justice system. Such quick measures may also help in avoiding another case referral to the ICC where AU and the ICC will be tempted to engage in further in political wrangling. Despite having developed a matrix for the establishment of the Court, the AU Commission has yet to publicly begin the establishment of such a process.

With the aim of delivering a firm message to the actual and potential violators of the terms of the Peace Agreement, the AU and UN should speed up the process of establishing the envisaged Hybrid Court.In this regard, the AU has to be clear about the role of the Special Envoy of the AU, Prof Alpha Konare. One among many objectives and a clearly deliverable task for the Special Envoy would be to coordinate the establishment of the Hybrid Court.

In addition to the immediate need to mendthe rift between the two conflicting parties on the election of a Speaker of the national legislature, needs to be addressed so as to legislate for the establishment of a Hybrid Court. Another important component of the Peace Process, is the constitutional amendment process which the IGAD leadership has to enact.

Through a unified voice within a multilateral setting, the destructive forces bent on making use of the crisis for their own advantage, could be tamed.

Ed’s Note: Mehari Taddele Maru is adjunct assistant professor at Addis Ababa University, and a specialist in peace and security, international lawand migration, public administration and management. Follow him @meharitaddele

Photo Credit: fletcherforum.org