By Daniel Juol Nhomngek
January 24th 2020 (Nyamilepedia) — The R-ARCSS establishes the IBC, its functions and its composition. The R-ARCSS, 2018 provides that the IBC shall complete its work within a maximum of ninety (90) days that cannot be extended (clause 1.15.12). It however provides that if the IBC failed to issue its final report within that period then the Council of States shall be reconstituted pursuant to the outcome of the Referendum (clause 1.15.13). That in the unlikely event of the IBC failing to make its final report before the end of its term, the IBC shall automatically transform itself on the 90th day of its term into the Referendum Commission on the number and Boundaries of States to be referred to as RCNBS of the Republic of South Sudan ( clause 1.15.14).
The R-ARCSS further goes on to state that once the IBC transformed itself into RCNBS, then it has an absolute duty to work under the direct supervision and support of the African Union and the IGAD, and pursuant to the International guidelines, and shall conduct the referendum before the end of the agreed eight (8) months of Pre-transitional Period (clause 1.15.15). This provision takes the implementation of the Agreement in respect to 32 States out of the hands of the parties to the conflict. Instead, it creates RCNBS and the parties will only contribute to the resolution through consultation with it but not directing or hijacking the work of the RCNBS.
The stage in the implementation of the Agreement on 32 States upon the failure of the IBC is the Referendum. Hence, if the IBC failed to issue its report within 90 days then on the 90th day of the 90 days, the IBC automatically transformed itself into RCNBS in accordance with clause 1.15.16 of the Agreement. This is in favour of the Government and the government can even move on to conduct referendum within the Pre-transitional Period as the Agreement says so. However, the question is, it is appropriate to conduct the referendum at this time within the Pre-transitional Period? This is the question the Agreement failed to address because of some reasons as explained below.
The first reason is that the oppositions might have been hoping that it was automatic that once the Independent Boundaries Commission (IBC) began its works, the final results would go in their favour because of the belief that it was not due to the demand of the majority as well as they were illegally created. Based on this point, the oppositions might have been hoping that IBC would without hesitation unanimously vote against 32 States, which turn out not to be the case.
The government on the other hand, firmly relied on politics. The government believed that the demand for more states was from the majority of the citizens. The Government hence solely relied on the politics of majority. At that point, the government adopted the traditional political philosophy or agenda that asserts that a majority of the population is entitled to a certain degree of primacy in society, and has the right to make decisions that affect the society ( A Przeworski, JM Maravall, I NetLibrary Democracy and the Rule of Law 2003, 223).
For the purpose of clarity, I would like to briefly explain the distinction between majoritarian politics and the concept of a majoritarian electoral system in relation to this discussion. While majoritarian electoral system is a simple electoral system that usually gives a majority of seats to the party with a plurality of votes, democratic majoritarian political structure is where the majority would not exclude any minority from future participation in the democratic process but majority can dictate due to numbers. This is sometimes pejoratively referred to by its opponents as “ochlocracy” or “tyranny of the majority“(Wikipedia).
In support to the above point, we can use statements of the Spokesperson of President Salva Kiir, Ateny Wek Ateny and Honourable Michael Makuei Lueth spoke recently on the issue of 32 States. For instance, Ateny Wek Ateny said last time when he was speaking to South Sudan Broadcasting Cooperation (SSBC) following a meeting between Kiir and a delegation from Terekeka state that— President Salva Kiir is not going to put his pen again to dissolve those states comes what. If it is a pressure, there will be no pressure under the earth, under the sun ….. That will make President Salva Kiir to put his pen on an order that will cancel the 32 states, (December 25th 2019 (Nyamilepedia).
The Minister of Information and Broadcasting, Michael Makuei Lueth further confirmed the statement of Ateny Wek Ateny when he said that “Number of states will and shall forever be 32 states, they’ll only be reduced according to the will of citizens of South Sudan, not the opposition.”
In the same way, the oppositions are trying to advance the concept of the majoritarian politics by arguing that 32 States is not a demand by the majority. On this ground, the Opposition leader, Dr. Riek Machar, expresses the unwillingness to take part in the formation of the Revitalized Government of National Unity unless the issue of 32 States is addressed. According to him it disadvantages the majority though the government disagrees with him on that point.
Thus, while the proposal by the Government that the number and boundaries of States should be resolved through referendum, the oppositions reject it which has made both sides to stick to their respective positions. This is very dangerous as it is likely to result into the other further conflict. What even further complicates the matter is the approach the opposition is taking in dealing with 32 States. The opposition members and their supporters including some of the members of Civil Society complicate the problem by putting forward several arguments in one demand. These groups opposing 32 States argue that these States are not economic viable, that they were illegally created and imposed on people and that the president has grabbed the land and awarded it to his tribemates.
The question we must address our minds to as parties have now hit the deadlock is what is the way out of here? In my opinion, we still have some alternatives before we go to war. One of the viable alternatives is for the parties and other South Sudanese to go back to the Agreement itself. Going back and closely study the Agreement subject to the critical analysis, the Agreement can help the parties and other South Sudanese to get answers or implied solutions. It is important to look at Clause 1.15.16 of the Agreement when we are searching for the solution in the Agreement. The foregoing clause provides—
The referendum shall be conducted on the number and boundaries of states of the Republic of South Sudan taking into account the positions advanced by the Parties. The question or set of questions that shall be posted in the referendum shall be the same for the entire country unless it is decided in the RCNBS that each State shall have different question or set of questions more understandable to the people. In line with this provision of the Agreement, we have to make some brief observations.
The first observation is that after the IBC failed to agree on the number and boundaries of States that are appropriate for South Sudan, it automatically transformed itself into the RCNBS. The primary responsibility of the RCNBS is to conduct the referendum. This means that the parties no longer have any power to determine how many states and their boundaries the South Sudan should have and how the referendum is to be conducted. It is the exclusive duty of the RCNBS to conduct the referendum and determine other related issues.
One of those related issues is the time and stage at which the referendum is to be held. The other further issue to consider is the fact that for referendum to be recognized international (as this proposed referendum is to be based on the international guidelines), the identities of those voting and the population must identified and documented. It implies that the RCNBS has to make sure that all the citizens are back from neighboring countries. Once all the citizens are back, the first thing to do immediately is the population census to determine the number of the population to vote during the referendum to avoid irregularities that may affect the validity of the outcome of the referendum.
After that the referendum shall be conducted based on the report of the Technical Boundaries Commission-TBC. The Agreement provides that the TBC is to be formed to conduct studies on the number and boundaries of States where the people are in dispute over the boundaries due to the violation of those boundaries when states were created by the Order of the President in 2015. The Agreement further provides this when it states that after the TBC gives its report to the IBC before the IBC commences its work prior to ninety days.
As I have hinted in the foregoing paragraph, the role of TBC is not to determine all the boundaries of 32 States but it is authorized by the Agreement to only determine the those boundaries which are being disputed between the two or more states. It is for that reason Clause 1.15.17 of the Agreement provides that ANNEX E (Mediation Proposal of August 19, 20198) to this Agreement shall apply notwithstanding any provisions to the contrary. TBC is the most important body whose shoulders stability of South Sudan relies on if it does it works without conflict of interest and to follow the Agreement as it is. In that respect ANNEX E is of help and this why it automatically applies even if it is not provided independently in the Article or articles of the Agreement itself.
ANNEX E provides for the role of the TBC which is to draw a list and map of tribal boundaries currently in dispute as a consequence of introducing 32 States. The TBC therefore in drawing the list and the map must restrict itself to addressing those boundaries and shall specify the tribal boundaries of 1.1.1956 that were violated by the 32 States. ANNEX E further provides that Tribal Boundaries not affected by the 32 States are not required to be listed or mapped. After that the TBC shall present its report to the IBC which shall propose rectifications for the boundaries of the 32 States found by the TBC as violating tribal boundaries of 1.1.1956.
After receiving the report, the members of the IBC shall further by consensus, and on the basis of its already set guidelines, agree on number and boundaries of States that are appropriate for the Republic of South Sudan. ANNEX E in Paragraph 3 then provides for determining the number and boundaries of States, which shall be drawn beforehand and right at the beginning of the work of the IBC. These shall include—respecting to the TBC report, population size and social cohesion, geographic size, and economic viability among others. ANNEX E in paragraph 4 then states that in the light of its set of guidelines, the IBC shall study all viable alternatives for the number and boundaries of states, which shall include the 32, 21 and 10 states options, and shall determine by consensus which number and boundaries are appropriate.
If the IBC fails to agree on the number and boundaries of states, the RCNBS shall conduct a referendum on the issue of the number and boundaries of States asking South Sudanese to choose one of the following options— The option one will be whether South Sudan may maintain 32 States in pursuance to the proposal of the IBC to rectify them; the second option will be whether South Sudan may opt for the 21 States as was originally declared by Dr. Riek Machar; the third option will be whether South Sudan may decide to return to the 10 States or the fourth option will be the number of states agreed by the IBC to be offered as an alternative. This what the agreement says and there is a need to make proper summary of the procedures to be followed in conducting the referendum.
SUMMARY OF STEPS TO BE FOLLOWED IN CONDUCTING THE REFERENDUM
In the resolving the dispute over the 32 States, the Agreement provides the following steps—
The first step is the formation of the TBC which would have to determine the true boundaries of 1.1.1956, which were violated in the process of the creation of 32 States. In drawing, the TBC must restrict itself to addressing those boundaries and shall specify the tribal boundaries of 1.1.1956 that were violated by the 32 States. The TBC should not interfere with the states without any dispute over boundaries. This is important because it tries to isolate the issues by dealing with the issue of land before and make sure that all 32 States are free from the dispute as the referendum cannot go on if there are disputes over the land or boundaries of the states.
The second step is that the TBC shall present its report to the IBC and upon the reception of the report, the IBC would begin its work by determining the number and boundaries of the States appropriate for the Republic of South Sudan. The decision of the IBC in voting shall take into account: the population size and social cohesion, geographic size, and economic viability.
The third step is the transformation of the IBC into the referendum commission. The Agreement provides that if the IBC fails to reach the conclusion within 90 days then on 90th Day it shall transform itself into the Referendum commission on the number and boundaries of 32 States. The referendum is supposed to be conducted within the Pre-transitional Period but the Agreement does not anticipate the question that what if the RCNBS or referendum commission fails to conduct referendum with the time as provided in the Agreement?
The fourth step is to address the gap that exists now as the Agreement does not answer the above question and it is where the conflict is but if we can analyze the provisions of the Agreement, we can realize that there is a third step within the Agreement though not explicitly provided. The R-ARCSS states that once the IBC transformed itself into RCNBS, then it has an absolute duty to work under the direct supervision and support of the African Union and the IGAD.
It further provides that the RNCBS in pursuant to the International guidelines, shall conduct the referendum before the end of the agreed eight (8) months of Pre-transitional Period (clause 1.15.15). This provision takes the implementation of the Agreement in respect to 32 States out of the hands of the parties to the Agreement and vast the power in the hands of the referendum commission. This means that the Referendum commission has the power to determine whether it is feasible to conduct the referendum now or not. The factors to be determined in reaching their decision are those provided in the international guidelines on referendums.
The Guidelines for Constitutional Referendums at National Level Adopted by the Venice Commission at its 47th Plenary Meeting (Venice, 6-7 July 2001) set out minimum rules for constitutional referendums and are designed to ensure that this instrument is used in all countries in accordance with the principles of democracy and the rule of law. These Guidelines use the fundamental principles of human rights such as universal, equal, free and secret suffrage which apply mutatis mutandis to referendums. The application of the International Guidelines means that citizens must be free from fear and those who are eligible to vote must decide to freely vote or not without being stopped from voting by external factors. This implies that for the referendum on 32 States to be valid and to meet the international guidelines, every South Sudanese must participate to vote freely or freely abstain from voting.
It means in practice that all the citizens in the neighboring must therefore be present. All citizens must vote as the present referendum in South Sudan is nothing but the constitutional referendums, which is part of the democracy that address a number of issues connected to the states and the rule of law and democracy. It must therefore take into account the popular votes in which the question of partially or totally revising a State’s Constitution is asked, irrespective of whether this requires voters to give an opinion on a specific proposal for constitutional change or on a question of principle (United Nations Human rights Office of the Higher Commissioner).
Having said already that the RCNBS is the body given responsibility to deal with the issue of the boundaries and the number of States, it has a power to recommend for the postponement of the referendum. The recommendation should be based on the views of the parties as the Agreement itself provides that the RCNBS must work in consultation with the parties. But the parties do not have power to dictate what the RCNBS should recommend though the RCNBS must take into account their views before making recommendation. Therefore, the implementation of the Agreement on the number and boundaries of States should be left to the RCNBS to properly determine the issue after the permanent peace is achieved in the country as the issue of land involved in the disputes over the tribal boundaries is a matter of Constitutional importance and connected to the national stability.
It must must settled with minimal political interference from politicians. This is why the Agreement gives those who are aggrieved by the decision of the IBC or RCNBS in respect to their land to appeal to the International Court of Arbitration at The Hague. It is the same issue the TBC is composed of the international experts who would have determined the tribal boundaries affected by the creation of 32 States without any interest in the matter and would have been able to give proper positions of the boundaries as they stood in 1.1.1956.
Fifth step is that after the above step is agreed through the recommendation given to the African Union and the IGAD by the RCNBS the next step should be to conduct the population census and it is that population as ascertained that will be allowed to participate in the referendum. Whatever outcome that will come as a result of the referendum based on the proposal of whether 10, 21, 23, 32 or any other number suggested by RCNBS will be adopted in the Constitution of South Sudan.
The next question is what about those whose houses are or land is affected by the order creating 32 States what will they do for the time being? The answer is that whoever is affected should remain in their homes even after the referendum unless he or she voluntarily chooses to leave his or her house or land. This is because his or her rights to the land are not affected by the Constitutional order created by 32 States. The government should be ready to counter any groups that interfere with the individual South Sudanese settlement whose land was arbitrarily cut into a given state among 32 States during the creation of those states.
The RCNBS should also recommend the establishment of the Hybrid Court of Arbitration that will be dealing with the land cases before, during and after referendum so that the citizens will have the rights to appeal to the highest courts and after they have lost the case then it is the duty of the government to move in to enforce the court decision. This means that for the citizens to have confidence in the court and the Court commands obedience from them, the judges to be appointed must be agreed by all the parties to the Agreement and their credentials must be made public to all in a given period so that those who want to challenge the appointment of a given individual member of the court are free to do so without any interference.
In summary, the above steps show how the Agreement has dealt with the issue of 32 States and their boundaries. What is going on now is the violation of the Agreement. The parties should go back to educate their members that the Agreement provides for the solution and the insistence on the approach outside the Agreement may result into the violation of the Agreement itself. Agreement is a supreme and it must be respected and implemented to the letter.
Daniel Juol Nhomngek is a lawyer by profession holds LLB from Makerere University in Kampala, Uganda. He’s currently working with M/S Ibaale, Nakato & Co., Advocates, P.o Box 26781, Kampala, Uganda. His research, he is interested in teaching and law practice in the areas of criminal law, international human rights law and the law of armed conflicts, public international law, administrative law, Equity and Trusts, constitutional law, Jurisprudence or political philosophy, legal methods and theory, legislative drafting and judicial practice; and law & public policy. For any comment please reach the authority through any one of the these email addresses: juolmarialdit@gmail.com ;or juoldaniel2003@gmail.com
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