THE FOUNDATION OF SOUTH SUDAN IS PREMISED ON SOCIAL CONTRACT NOT ON MASTERS AND SERVANTS RELATIONS.
By: Daniel Juol Nhomngek, Uganda, JUL/05/2014, SSN;
This article intends to explain the foundation of South Sudanese nation and the relation of the people of South Sudan and their government. It will also explain why the government of South Sudan has misunderstood this relationship because instead of treating it as a social contract, it treats it as a master-servant relation hence changing the Transitional Constitution provisions which clearly state that the relationship on covenant is not that of master-servant relationship but contractual in nature.
It will in addition explain the concept of Africa family and its advantages to her members and how this concept is the basis of the foundation South Sudanese Transitional Constitution and this can help solve the present poverty crisis in the country if adopted, which can further help to reduce social tension that has been the cause of the numerous wars fought in Sudan and current conflict in South Sudan.
Without wasting time, it is imperative to begin with the famous statement of Dr. John Garang when he was addressing Sudanese community in the United States on what constituted the fundamental problem of Sudan. In that speech, he pointed out that an attempt by various Khartoum based regimes to build a monolithic Arab state constitutes the fundamental problem of Sudan.
In the same way, an attempt by SPLM leadership since 2005 to change the foundation of South Sudan from contractual relation to master-servant relation constitutes the fundamental problem of South Sudan.
The foundation of South Sudan is provided for under the Transitional Constitution of 2011. In Article 9 (1) on the Bill of Rights of all South Sudanese, it is provided that the relationship that exists between the people of South Sudan and their government exists as a matter of covenant.
In plain English and according to the Bible, a covenant means a formal agreement or a contract between the parties. . In Genesis 12 in the Holy Bible for instance, Abraham, the father of the modern Jewish people or Israel, is said to have made a covenant with God.
In that covenant, God took undertook initiative to promise Abraham a lasting, peace, protection and numerous children. God indeed made a promise to Abraham of as many children as stars in the sky at night and as many as sands at the sea. As soon as God made that promise to Abraham, He went into pact with Abraham when Abraham made a sacrifice of five animals. From that time Abraham became a true friend of God and God remained loyal to that agreement indefinitely despite the fact that God had power to violate it at will.
If I can ask this general question: why did God decide to remain loyal to the contract he made with Abraham although He had power to violate it at will? It is important to note that because God is a God of truth, justice, law and order he has to do what He initiated to human being according to the principle of general contract.
God knew that as a matter of justice and protection of the rule of law, He had to be committed to following and performing His part of the agreement in good faith and Abraham had no option but to do the same.
It should be observed that the contract or covenant between God and Abraham was being performed in accordance with the general principle of the rule of law of contract, which provides that as soon as parties have entered the valid contract, such a contract is binding and must be carried out and performed in good faith.
This is because if God or Abraham violated the terms of that contract the rule of law governing business would have been destroyed. Therefore, God and Abraham have to be committed to performing the contract in order to save the rule of law implied in the covenant.
The rationale behind strict adherence to the contractual terms of any contract or covenant is that once a person has promised to do a certain work and the other party has incurred detriment due to that promise, that person who misled the one who has suffered detriment must be forced to perform his or her part. This is because the rule of law does not allow a person to back down from his or her promises since it will destroy the rule of law itself.
Preservation of the rule of rule makes covenant binding on the parties who made that particular power although they are unequal in strength. This is why even the most powerful nation like the USA goes into contract with a weaker country like South Sudan; the USA must follow what the international law dictates it to do.
In the same way, the contract is performed based on the same principle of the rule of law no matter how powerful one party is, which underscores why God has to perform His part of the contract in Biblical or Abrahamic time.
As put above, the foundation of South Sudan as a country and the relationship that exists between South Sudanese themselves and their God is premised on covenant. The rule of law that follows from that contractual relationship by the virtue of Article 9 of the Transitional Constitution imposes a binding duty on South Sudanese authorities and citizens of South Sudan to perform part of their social contract established therein in good faith.
The problems prevalent in South Sudan today are due to the violation of the terms of the covenant provided for under Article 9 of the Transitional Constitution. Article 9 of the Transitional Constitution establishes the agreement that gave birth to South Sudan as a nation. The agreement was in form of covenant. The terms of that covenant were that the covenant was made between people of South Sudan on one hand and their government on the other hand and at every level.
In addition, the agreement stipulated that the people of South Sudan were to co-exist together based on equality before and under the law. Existing in equality in this context means respecting each other‘s culture, religion, customs or values, resources, which further means sharing the national resources equally. Equal sharing of resources means that people should love each other or tolerate each other if love is too heavy to carry.
In order to ensure that the terms of that covenant are obeyed and strictly adhered to by every South Sudanese, the citizens went ahead to elect a certain group of people with contract who they consider to be neutral in order to be in charge of the country. This was to ensure that contract between them is followed by every member to it or forced by that group selected to force them to abide by the terms of contract.
The group selected as stated in the foregoing paragraph constitutes the government of South Sudan, which was supposed to act as a trustee and hold all the resources of the people of South Sudan in trust for them. Trustee in plain English language means someone who is entrusted with people’s property on certain terms and condition.
In the definition given in Chambers-EAEP English Student Learners ‘Dictionary new edition, a trustee is someone who looks after and controls someone else’s money or property in a legal agreement. As seen from the definition of trustee in that Dictionary, South Sudanese authorities were entrusted to hold all natural resources in trust for the people of South Sudan, which means that the leaders are prohibited from using national resources to build personal empire and wealth.
However, South Sudanese leaders dishonestly breached the terms of the agreement as provided for in the Constitution and instead ran a country like person assets which further threw the country into massive corruption and ordinary citizens became extremely poor coupled with disappointment that has become part of their lives.
The government in addition as provided for in the covenant was to hold in trust for the people and protect natural resources such as lakes, rivers, wetlands, forests, games, national parks, minerals and all land on behalf of the people. The term of that trust involve the authorization of the government to use of force where necessary.
In fact South Sudanese know very well the concept of the government. The authorization of South Sudanese authorities to use force is based on the concept of the government. The government is ordinarily understood to mean the legitimate use of force. Therefore, South Sudanese trusted the government to use force legitimately where some members to this social contract disobeyed it terms.
However, to ensure that their interest is not jeopardized by the extensive use of force in case the government forgot to follow the terms provided in the social contract, South Sudanese limited the government in other way. They forced the government to promise them that it would respect their rights and freedoms.
Rights and freedoms of people as a matter of general human rights law limit excessive use of force but only allow the reasonable use of force. As a result of that agreement, the government once again promised them to respect and promote their human rights and fundamental freedoms enshrined in the Transitional Constitution.
The Transitional Constitution in Article 9 provides that the government must protect, respect and fulfill human rights and freedoms, which is the cornerstone of social justice, equality and democracy. The Transitional Constitution is alive to the important of social justice because social justice deals with the economic well-being of South Sudanese. In addition, it deals with the distribution of benefits and burdens throughout society.
Moreover, on the individual level, social justice demands a proportionate share of the benefits of economic endeavor of social partners, that is, social justice demands proportionate distribution of the fruits of people’s labour so that no one is cheated in any manner. Furthermore, on the national level, every group demands a proportionate and equitable share of the nation’s wealth among various groups, which implies that the demands by minority groups should not be neglected.
In relation to the above, the concept of social justice in South Sudan provides that the rights and freedoms of individuals and groups enshrined in the Bill of rights has to be respected, upheld and promoted by all organs and agencies of Government and by all persons.
When it comes to the international level, social justice demands that the relationship between nations be guided by mutual respect of every nation. It imposes an obligation on developed nations of the world so that every nation will enjoy fruits of earth, and so, fully live as human beings.
As it can be understood from the discussion in the foregoing paragraphs, social justice in other words, means treating people equally and ensures that they are able to access resources on equal footing. It is upon such ground the concept of social justice can be well understood when explained in the concept of and the role of family in South Sudan as a country.
The concept of social contract as provided for in South Sudanese Transitional Constitution is founded in the concept of social justice and family. The Transitional Constitution in other words is founded on African concept of family. The African concept of family is in turn founded on “ubuntu” notion. “Ubuntu” notion provides that all people are equal and belongs to the same family. This means that African concept of the family is founded on the notion that all members of the family are equal in rights and in dignity.
As African Scholar and Philosopher, John Mbiti, correctly observed “I am because you are and since you are therefore I am.” This saying underscores what constitutes healthy family in Africa. A typical or healthy family in Africa is that unit of people which accommodates all people related by descent and common ancestor. Hence, a typical African family takes care of its members; besides, providing a room for foreigners who have sought refuge within its premises and under its shade.
In general, African family system is founded by its members due to the advantages that accrue to them, in terms of social assistance and social justice. These advantages are clearly summarized by Journal of Social Development in Africa Vol. 17 no 2 July 2002. African Community according to that Journal is where the group or family serves only their members; it is a kinship-based solidarity.
For instance as that Journal further provides, groups serve the extended family and village residents’ by extending mutual assistance to its members, which are compulsory for all adults in the villages as a matter of moral responsibility. Moral responsibility created solidarity and an obligation to care for family members and relatives in times of need.
In relation to the above concept of African family as explained by Journal and African Philosopher, John Mbiti, the country call South Sudan constitutes African family and South Sudanese government as a head of this big family has a duty both under the national and the international law to ensure that all human rights and freedoms enshrined in the Transitional Constitution are respected, promoted and fulfill.
Under the international law, the principal obligation of South Sudan is to take steps to achieve progressively the full realization of the rights of all South Sudanese in all areas. This imposes an obligation to move as expeditiously as possible towards that goal. South Sudan as a State is obliged to ensure for everyone under its jurisdiction access to the minimum essential needs which are sufficient to ensure that all South Sudanese are free from poverty. As seen in the foregoing discussions, South Sudan is just a trustee who is supposed to hold all national resources in trust for the people and to ensure that their distribution is determined by principles of social justice.
Principles of social justice that determine the distribution of national resources are: equal access to opportunities and rights; fair system of law and due process; ability to take up opportunities and exercise rights; protection of vulnerable and disadvantaged people. These principles of social justice ensure that all people in the country are treated as equal members of family as an African concept of family previously explain entails.
It further implies that the possibility of throwing the country into the crisis of social classes is minimized through equal distribution of resources, which in turn results into improvement in the welfare of all citizens of South Sudan.
Unfortunately, as things now are, it is in apparent that social classes have already been developed under the disguise of tribalism. It is tricky. It is very tricky because tribalism covers underlying social structures of the South Sudanese communities. There is an existing social class system beneath and within South Sudanese communities but tribalism effectively covers its appearance.
South Sudan has developed social classes already and there is a caste system that exists in persons of women although many people who lack clear analysis keep on blaming tribalism whenever there is a problem triggered by marginalization at any level within the government and the society at large.
To explain the point made above, many citizens lack clear analysis of the social relationship which currently exists in South Sudan and often make premature conclusion by saying that problems of South Sudan affecting them in all areas are as a result of tribalism. To them, tribalism creates nepotism in the system of government, which excludes non-relatives of the one in the government from accessing employment and other opportunities.
Of course, such an argument is held by many and almost all believe to the source of the problems of South Sudan. Such an argument however in my view does not hold water in relation to the problems occurring presently in South Sudan. It does not hold water for some reasons.
One of such reasons is that the system also affects the members of the same people who are accused of tribalism, and for instance, if the problems of South Sudan were due to tribalism, all Dinka people would have been contented with the government simply because their man is the president of South Sudan which is not the case.
For instance, some Dinkas are not happy with the government of Kiir as seen in the recent defection of some prominent Dinka politicians who have recently rebelled against the SPLM government. The same is true with Nuers who are divided for and against rebellion, which they were supposed to have joined since it is a Nuer spearheaded rebellion.
From the above analysis, it is therefore logical to argue that if the problems of South Sudan were all about tribes, all Dinkas would have joined army to defend Kiir’s government or all Nuers would have joined Riek to fight for Nuers’ victory, but Equotarians would have not joined either side. This argument knocks out the notion of tribalism in South Sudanese problems.
As the explanation above illustrated, problems of South Sudan have nothing to do with tribes but they are as a result of an attempt by SPLM leaders to build personal wealth and empire and in the process end up creating social classes through patronage system. Therefore, what is being experienced in South Sudan today in form of conflict is the knock on effect of social classes struggle.
Nevertheless, this argument should not be taken out of context, no one disputes the contribution tribes and tribalism have in the problems of South Sudan but their contribution should rather be treated as one of the facilitating factors along poverty and illiteracy.
Back to the point, as leaders build personal empire and wealth, there is a creation of social classes since the building of wealth involves marginalizing of vulnerable. The same marginalization occurs within the SPLM leadership since leadership is understood as a major source of wealth by all South Sudanese.
The rationale is that the more one is at the top of leadership, the richer one becomes and this explains the fact that within nine years of the establishing of the government of South Sudan there are already billionaire. The question is where did those rebel leaders get such huge amount of dollars? Hence, making leadership a disputed area of interest to all and this brings in tribes and tribalism since they can facilitate one’s easy access top leadership and power.
This is why after quarreling in the struggle to go to the top of leadership but failed, some of the SPLM leaders appeal to the tribe-mates to help them fight their way to power. Hence, exploiting tribes and effect of tribes; tribalism to their advantages. At this point the tribalism becomes apparent to every person and they conclude that the problems of South Sudan are tribalism; such a statement is superfluous and erroneous.
The argument of this article as explained above is that problems of South Sudan are not due to tribes and tribalism. Instead they are due to cause and effect of social classes created in the process of building person wealth of leaders.
Social classes in South Sudan have their basis in the way war scattered people. It has to be noted that during the war many South Sudanese were scattered to different parts of the world while others remained in South Sudan throughout the liberation struggle. Those who remained in South Sudan are the SPLM/A and some people who had never gone to town.
One interesting thing that emerged about the liberation struggle of South Sudan is that although all South Sudanese were united against north in whatever capacity and wherever the war caught them or scattered them to, including those who were in Khartoum; in fact, those who were in Khartoum suffered the most because they braved Khartoum government through supporting its enemies.
Nevertheless, when the peace agreement was signed in 2005, the SPLM government started discriminating the other group of the people who were not in the liberated areas. SPLM members began categorizing some South Sudanese who were not in the war zone as not true liberators.
To effectively discriminate and marginalize the groups who were not within war zones, the SPLM/A employed a phrase which I do not know any equivalent phrase in English. The phrase in Dinka is “ee Piny ci Ok Kooth Guor thin.” In general, it means “a war of liberation in which we have suffered.”
The irony is that all South Sudanese including unborn whether within South Sudan or outside had suffered during the war and were also committed members of the SPLM/A. This is illustrated by the fact that South Sudanese owned liberation in their souls and mind.
In fact, this assertion is proved by the fact that sometimes during the war when things became difficult like in 1990s, the SPLM leaders could leave forests or bushes to either go to Australia, Canada, the USA, the UK or to many other countries where South Sudanese were.
They went there in disguise of educating people on the progress of liberation war but in actual sense, they were going to get assistance from those innocent South Sudanese who later became victims of social classes created by the greed of SPLM leaders.
In other words, there were times during the war SPLM leaders and their children could heavily rely on the people from Diaspora for their survival. But after peace agreement, the same SPLM leaders marginalized the people in Diaspora by developing a phrase like the one that has just been explained above.
Another observation which has to be made about the application of phrase explained above and which explains the fact that SPLM leaders are building social classes is that the phrase is applied selectively. It is not applied to the children of the leaders although they were also outside South Sudan as well, which means that it is only intended to exclude other members of South Sudanese not related to leadership either by tribe or in any other way, which beneficial to them.
As I discovered later, the phrase was employed by SPLM/A members to marginalize citizens from sharing in the fruits of their liberation struggle hence it was used as a tool of oppression and a form of social injustice that exists in South Sudan; the phrase is one of the tools for creating social classes.
The SPLM leadership has been consciously creating social classes as a way of entrenching itself in power which made it a group, which with time became a dominant group and also a group which controls resources of the country. Hence, the struggle for and against social classes began at this point and tribalism although it is not a cause for struggle becomes a facilitating factor in causing tension in the struggle for domination.
One funny thing to note about the role of tribalism is that the members of the SPLM hate tribalism when it is disfavoring them politically but use it for their advantage when they deem it necessary hence manipulating South Sudanese to their advantages.
For example, if I can remember very well what Dr. Riek told youth sometime back? In some years back he abused students from East Africa to the point of calling them political novice who should be taught how to play politics. To Riek, like any politicians in South Sudan, he expected students to be submissive, snobbish, miscreant and sheepish to him.
The youth of the above characters are the one South Sudanese politicians want. All politicians of South Sudan expected youth who wash their feet and praise them continuously even in the face of abuses of their rights, which has become a custom in South Sudan that youth should not attack politicians. This is a failure to distinguish the law from morality.
Human rights is a matter of law and every holder of that rights is supposed to protect his or her rights by coming out openly to protest and to attack the violator of his or her rights while morality is not binding but exists in villages where youth are expected to respect elders.
However, it should be observed that traditionally elders were respected because of the good work they do and also because they cared for the youth, which explains the rationale behind giving youth the fattest parts of animals in cattle camp.
The youth were given fatty parts of meat because they were considered to be assets for the society and in case when there was a danger, they would defend the community. However, most of the elders in South Sudanese government have marginalized youth and at the same time expect youth to respect them, which is wrong and unfounded respect.
It is another way of weakening youth. The respect for elders is being used in South Sudan as a means of silencing the youth yet there is fragrant violation of their human rights which is unacceptable. The youth must teach politicians how to govern the country.
Coming to the point, the reason why Dr. Riek behaved as explained above at that time was because he saw youth to be a threat to his political dominance. He therefore attacked them as a tool of destroying such unity and weakens them. This is proved by the fact that when he saw that his dominance and struggle to achieve it was threatened within the SPLM membership, he has now turned shamelessly to the same East African students he first attacked of not knowing politics.
Riek, who knows the weaknesses created by tribes and tribalism in unity of South Sudanese managed to manipulate tribe and tribalistic feelings to recruit students to go and fight on his behalf as it has been reported sometime back after the conflict had broken out. The war of Riek has nothing to do with the liberation of South Sudan from dictatorship but it is a trial to achieve what he has not achieve through peaceful means within the party; the SPLM leadership.
Therefore, tribalism becomes handy in fighting against marginalization within dominant group by its members against their marginalization within SPLM. The effect of tribalism becomes apparent since most of the people do not deeply to dig out what beneath things. Most of the people take effect for cause. This is why tribalism is the problem of South Sudan to them.
Nevertheless, tribalism is the effect of underlying factors that are not apparent to most of the ordinary people and to less critical mind. To them, what they see is tribalism without asking of motivational factors underlying tribalism itself. Such underlying factors are sometime termed as “Order of Thing” by some philosophers and any person interested in finding solution to the problems must always study the underlying factors or the root causes of the problems.
Michel Foucault in his Book entitled The Order of Things explains the underlying factors as: “Order is, at one and the same time, that which is given in things as their inner law, the hidden network that determines the way they confront one another, and also that which no existence except in the grid has created by a glance, an examination, a language; and it is only in the blank spaces of this grid that order manifests itself as depth as though already there, waiting in silence for the moment of its expression.”
As explained by Foucault in the above extract, the existence of things on earth including human beings is determined by underlying and inner law that cannot be easily noticed by anybody but only critical thinkers. Failure to understand underlying factors causing a given social problem will make that problem continues without ending and people will become helpless since they are not able to get a suitable solution to that particular social problem.
Therefore, the best way to solve any problem is to approach the issue in two ways. The first way is to stop the problem and the second way is to study the cause of the problems. The first way is to stop the problem from escalating and then the next step to find out the root causes of the problems in order to get correct solution to the problems. Failure to follow these two ways will make problems stay permanently or even expand.
Coming to the problems of South Sudan, its problems has nothing to do with tribes and tribalism although it cannot be disputed fact that tribes and tribalism play a role in fuelling the crisis.
Tribes are only a facilitating factor as witnessed in South Sudanese war on 15 December 2013. That war did not start as a tribal war, but, started as a political struggle for power within the SPLM party.
However, due to the illiteracy and ignorance, some citizens supported such useless war that had no basis all to make it just but only intended for political domination among SPLM party members.
The political struggle though became a devastating conflict, started way back in 1990s, whose root-causes and human rights abuses committed as a result of that conflict remained unaddressed, which remains as a source of tension within South Sudan. The underlying problems of South Sudan were supposed to address after peace agreement.
However, after the establishment of South Sudan government in 2005, the SPLM leaders did nothing to address the underlying causes of the previous conflicts but instead opted to conspire against all South Sudanese citizens by marginalizing them from equitable sharing of the national resources.
The SPLM/A leaders started using national resources that were supposed to be in the improvement of people’s welfare by living extravagant and lavish lives. This is indicated by fact that although they are poor they live like billionaires buying most expensive cars in the world. South Sudan becomes a hotpot markets for Hammers and other celebrities’ cars which leaders are not supposed to buy. For instance, every house of SPLM leader has big cars even Obama cannot afford. This was mixing pride with poverty.
As a result, they misappropriated national resources through buying houses abroad, expansive cars, sending their children to expensive universities and building their own big houses in the states where they come from. While citizens are dying of hunger and some preventable diseases that can easily be dealt with the patriotic government.
Many leaders in SPLM government do not care for the welfare of the citizens of South Sudan. In summary, they are not patriotic. For instance while all other citizens of South Sudan are left in poverty and underdeveloped, they are developing themselves and their children with the false hope that their children will continue with their dynasty.
The above statement support the fact that the SPLM government disenfranchised citizens of South Sudan by not allowing them to have enough access to resources, the leaders begin to personalize education although education is a human right, and since it is a human right, the government has a duty to make sure that it is realized by all South Sudanese.
The purpose the authorities marginalize all citizens from national resources is aimed at leaving citizens ignorance with an attempt to constructing personal empire with unbridled wealth. Hence, social classes became apparent. The discrimination that exists in South Sudan in general indicates the existence of social classes.
Social classes are already constructed by the leaders as witnessed in the direct development of some concepts such as social capital, which means allocation of resources according to membership of their associates; social network, which means allocating resources according to interdependence and benefits, patrimonialism, which means centering government on family; this is where the government officials employed their relatives from the top to the bottom of the office hence leaving non-relatives out.
In addition, there is also an existent of patronage. The evidence of patronage in South Sudan is shown since resources are allocated according to the mutual benefits, which means that someone who cannot produce any benefit to the leaders cannot be supported.
All the above concepts exist in South Sudan and are seen in operation as they determine the allocation of resources to the public and the wrong allocation of resources created by above concepts stir up opposition against the government.
As explained above, the problem of South Sudan is not tribe but the failure of the authorities to run the government according to the principles of its foundation. The foundation of South Sudan as discussed in the opening paragraphs of this article is premised on social contract not on masters and servants relations as authorities are trying to establish in South Sudan.
This is because the authorities are struggling to build the society on master-servant relations hence neglecting the principles of social justice that are entrenched in the Transitional Constitution of 2011. The social contract in South Sudan is premised upon the foundation for a united, peaceful and prosperous society based on justice, equality, respect for human rights and the rule of law.
However, the authorities, as a matter of practice, have effectively neglected the rule of law. This is because they do not want the equality of citizens as their intention is to build their personal resources hence by implication building social classes in the country. They know that where the rule of law does not exist the citizens are vulnerable since they are not able to speak out against mismanagement of resources.
The authorities have created a lot of poverty even those who were not poor initially because they did have agent to educate citizens on how to earn a living. They have done this by creating a dependent nation, yet the reason why some of them got involved in the struggle was due to wide, yawning gap between rich and poor, and the refusal of government of Sudan to acknowledge and try to fix the existence inequalities between north and the South.
However, when they managed unthinkable, they now again reversed their original principles on whose war was fought and became worse than Arabs themselves. However, this statement should not be taken as if I am regretting for getting independence the point I am making her is that authorities must learn how to govern the country. They must understand that there is a need for the rule of law in South Sudan because failure to enforce the rule of law is dangerous and has many implications.
What the authorities have not understood is that as long as the rule of law does not exist or where it is neglected, the implication is that the problems of South Sudan will never end. Any country which seeks for prosperity must take the issue of social justice because the violation of social justice has the cause of revolution in history and the disintegration of many countries.
The only way to end the problems prevailing in South Sudan is for the authorities to get committed to promoting rule of law, which means that the authorities must respect human rights of every South Sudanese citizens, irrespective of their tribes.
Otherwise, if South Sudanese leaders continue to build personal wealth and empire at the expenses of the citizens and continue creating social classes, there is likelihood a risk for the country sliding into deeper crises and eventual collapse than what it is now.
The author is a lawyer from Makerere University and he can be reached through the following contacts: email@example.com; +256783579256