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The Bridging Proposal, Federalism and States number in S. Sudan [Part 2]

By Roger Alfred Yoron Modi

On the Number of States: On the controversial issue of number of States, the “Bridging Proposal” provides for that “immediately upon the signing of this Agreement, the revitalized TGoNU shall, taking into account the decision of 55th Extra-Ordinary Session of the IGAD Council of Ministers held in Addis Ababa, Ethiopia, January 30-31, 2016, appoint an Independent, ad hoc Boundary Commission (IBC) whose function shall be to review the establishment of new states and their boundaries and to make recommendations for addressing the consequences of these changes.

After the signing of the ARCSS in 2015, government increased the number of States in South Sudan from (10) to thirty-two (32). “Even though this was deemed to be in violation of the ARCSS, it was agreed that an inclusive mechanism be established to determine the number and boundary of States during the Transitional Period until the matter is resolved within the Permanent Constitution-making process,” the Bridging Proposal noted.

The Proposal further provides that the IBC to be formed shall consist of 15 persons “with the necessary skills and knowledge to undertake its functions: 12 South Sudanese, at least five of whom shall be women, and 3 representatives of the regional guarantors of the Agreement. The IBC shall be chaired by a Judge of the Supreme Court of South Sudan.”

It says that the IBC shall complete its work within 180 days, and shall make recommendations on adjustments to be made to the number and boundary of States during the Transitional Period. Thereafter, it added, the IBC shall be dissolved. The proposal also enshrined that the 180 days tenure of the IBC may be extended with “good cause.”

“To enhance its efficiency, the IBC shall establish three teams, each consisting of five representatives, to be deployed at locations it will designate,” the latest proposal says, stipulating that the recommendations of the IBC shall be binding.

Observations and Recommendations:

It is worth noting that the ongoing HLRF is not a new peace process but an attempt to give new life to the 2015 ARCSS which remains largely unimplemented mainly due to the resumption of armed conflict in July 2016.

It was in its response to the conflict and new circumstances that emerged in South Sudan that the IGAD Assembly of Heads of State and Government in a Communiqué on 12, June 2017 at its 31st Extra-Ordinary Session mandated the IGAD Council of Ministers “to urgently convene a High Level Revitalization Forum (HLRF) of the parties to the ARCSS including estranged groups to discuss concrete measures, to restore permanent ceasefire, to full implementation of the Peace Agreement and to develop a revised and realistic timeline and implementation schedule towards democratic election at the end of the Transition Period.”

Today Wednesday, pursuant to the IGAD Communiqué of last week, the South Sudan parties signed a deal in Sudan dubbed “Khartoum Declaration of Agreement between Parties of the Conflict of South Sudan.”

The Khartoum Declaration, inter alia, says “An Agreement on the ‘Revised Bridging Proposal’ shall be concluded as soon as possible and before closing the current Khartoum Round of Talks.”

However, there is still a chance for the South Sudanese parties to reach a comprehensive peace agreement within the next few days.

For the same Communiqué which mandated President Omar Hassan Al-Bashir to facilitate a second round of face-to-face discussion between President Salva Kiir and SPLM/A-IO leader Dr. Riek Machar within two weeks, to: “a. discuss and resolve the outstanding issues on governance and security arrangements including measures proposed in the revised Bridging Proposal of the IGAD Council of Ministers; and b. discuss measures to be taken to rehabilitate the South Sudanese economy through bilateral cooperation between the Republic of South Sudan and the Republic of Sudan,” also decided that the Sudanese President shall inform President Uhuru Kenyatta of Kenya of the outcome of the discussion between the parties.

The Igad Assembly of Heads of State and Government also decided that President Uhuru will facilitate a third round of face-to-face discussion between President Kiir and Dr Machar in Nairobi “to facilitate the revitalization process and report the outcome and way forward to the upcoming Ordinary Session of the IGAD Assembly of Heads of State and Government.”

So, despite all these, and the (limited?) mandate of the HLRF itself, there is still a chance for the South Sudanese parties to engage honestly and constructively so as to come up with a comprehensive peace agreement through the framework of the IGAD-led process.

This point is even reflected in the last week’s Communiqué that called upon the South Sudanese Parties and Stakeholders “to make further compromises and expeditiously conclude the HLRF process.”

Back on the issue of Federalism, it is worth recalling that in their joint Position on the HLRF in February, the 9 parties/movements known as South Sudan Opposition Alliance SSOA called for adoption of “a FEDERAL system of governance during the [next] Transitional period through effective division of powers and resources between the federal, state, and local government.” The SSOA argued that “other aspects of federalism that require detailed study shall be tackled by the National Constitutional Conference (NCC) as stipulated in [the] TCRSS (Transitional Constitution of the Republic of South Sudan) 2011 and ARCSS 2015 that shall be convened during the Transitional Period.”

On their part also, the SPLM/A-IO has been at the forefront calling for the adoption of Federalism in South Sudan for years now.

Therefore, in an effort to improve on the IGAD Bridging Proposal with the view of finding radical solutions to the South Sudan crises and issues raised in this article, the author hereby makes the following observations and recommendations:

1.Article 7 of the Bridging Proposal on the “The Question of the System of Government, Federalism” should be improved. Specifically, Article 7(1) which, based on the ARCSS, provides that “…there is a need to reflect… [the popular] demand [of Federalism] by way of devolution of more power and resources to lower levels of government.” Here, the parties and stakeholders should agree and insert a provision specifying the “power and resources” to be devolved to lower levels of government. For example, it’s been indicated that States receive a share of 15% of national revenue while the national government retains 85%.The author suggests that an affirmative action making a substantial rise (of at least 40%) in the allocation of national revenue to the lower level of government be provided for in the Bridging Proposal. The resources should be directed toward building institutions and human resource (personnel) in the states so that they are able to deliver to meet the needs of their people without failing the devolved system. Wide discussions over the matters should be held during the Permanent Constitution Making Process.

2.Also should be improved is Article 7 (2) of the Bridging Proposal which says “the Ministry for Federal Affairs shall be strengthened in order that it may carry out…[its] mandate to support the consideration of the appropriate models of federalism for South Sudan, and to contribute to the processes for adopting a federal system of government within the envisaged permanent Constitution of South Sudan.” Here, it should be stipulated how the ministry shall be “strengthened” and by who. And is it in terms of allocation of a budget? A list of specific mandate? These should be provided for explicitly in the final Agreement.

3.On the number of States, Article 5 (5) (1) of the Bridging Proposal provides that the revitalized TGoNU shall appoint an Independent, ad hoc Boundary Commission (IBC) to review the establishment of new states and their boundaries and to make recommendations for addressing the consequences of these changes. However, the Proposal failed to specify which organ of the revitalized TGoNU shall make the appointment. Is it the Council of Ministers, the Legislature of the revitalized TGoNU, or both? And how, through what procedure?  These should be explicitly provided for in the Bridging Proposal (Agreement).

4.Also, Article 5 (5) (3) of the proposal provides that the 180 days tenure of the IBC “may be extended with good cause” without mentioning which body (organ) holds the authority to make that extension. Is it the President? Is it in consultation with one or all the three Vice Presidents? Is it the Council of Ministers, the Legislature of the revitalized TGoNU, or both? And how? The Bridging Proposal (Agreement) should make explicit provisions on these.

Conclusion

Since the ARCSS being revitalized set the parameters of the Permanent Constitution to include initiating of a federal democratic system of government and the Bridging Proposal has acknowledged that, taking note of ARCSS that a federal system of government is a popular demand of the people of South Sudan, the author does not intend to open the matter for renegotiation.

Instead, the next government and all with good intentions should invest resources and the expertise to help enlighten South Sudanese on the different types of Federalism so that when the time comes for Permanent Constitution making the people will be able to actively participate and decide on the appropriate system of Federalism for the young nation.

A genuine reconciliation among communities is also key for South Sudanese to be able to move forward from the belief that federalism means “separate existence or segregation, which evokes painful historical antecedents.” There are provisions for such reconciliation in the current TCRSS

Finally, the author agrees with the view of AUCISS that “whether a system is denominated ‘federalism’ or ‘decentralization’ or ‘devolution’, it is the ‘content’ of the system (in relation to adequate devolution of resources, decision-making power and guarantees against undue interference in devolved units by the center) as well as commitment to the implementation of the constitutional text that matters.”

Roger Alfred Yoron Modi, a South Sudanese journalist, is the former Managing Editor of the Juba Monitor Newspaper and former Chief Editor of Bakhita Radio. He can be reached via his email: rogeryoron@gmail.com

 

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