Change IGAD’s Peace Agreements Model for rewarding Impunity in South Sudan

By Hakim Dario, PDM Chairman,
14th August 2018, SSN;

President Salva Kiir Mayardit will go down in history as one of the worst rulers rewarded for impunity by none other than IGAD in the newly independent country, South Sudan. After a decade in power since 2008 – 2018, his ministers and many generals, Members of Parliament and politicians, as well as many communities in the country rebelled against him and fought battles to resist his authoritarian and autocratic grip on power to rule with impunity.

The rebellions by George Athor, Athurjong, David Yau Yau, Murle and Chollo communities from the fallout of the SPLM polit-bureau inspired rigging of elections in 2010 rang the alarm bells of what was in store awaiting the fate of the country under Kiir’s rule in the lead up to independence in 2011.

The weight of expectations for the once in a lifetime opportunity, after more than 50 years, to exercise the right to self-determination referendum and usher in the world’s newest 193rd independent and sovereign state of their own, has held the people to together at this historic crossroads.

On 11th April 2011, the first Equatoria Conference was convened in Juba, as if inspired by and echoing the 1947 Juba Conference, albeit at a new crossroad that was within the peoples and nation’s grasp.

The conference resolutions reminded the people of the new nation “to be” of the historic calls of the 1947, five decades earlier, for a federal constitution and governance in a new interim social contract as we celebrate our deserved and long fought for independence.

This lofty goal now or then, without much quarrel, seemed to be fully within our grasp to chart at the onset of the country’s independence. It was not to be.

The opportunity, unjustifiably, was lost to peacefully enact a Transitional Federal Constitution of South Sudan (TFCSS2011) as an interim social contract between the people in the new “to be” state. However, Salva Kiir, John Luk and SPLM caucus had other ideas and plans in store for the nation.

What we got instead was the TCSS2011 which concentrated and vested unlimited power in the hands of President Salva Kiir to make him an autocrat who ruled by decrees with impunity. The people were cheated, and had the outcome been a TFCSS in 2011, today’s war would have certainly been averted by a genuine devolution of power.

The SPLM chose otherwise, but beat a too familiar path to make Kiir another long lived African dictator.

The SPLM politbureau members too (Dr Riek Machar, Pagan Amum, Rebecca Nyandeng), not long afterwards as did Athor, Yau Yau, Dr Lam Akol, Peter Sule before them, soon found cause and reasons for rebelling against Kiir autocratic rule in 2013, which led to the nearly four years genocidal civil war in the country today.

This surely has had the effect of dashing the nation’s hopes for embracing a peaceful democratic political order in the newly independent nation.

The pattern of rebellion against Kiir’s rule with impunity has become something of a statistical normal, with some rather significant standards of deviation from the normal, in the most unlikely of Kiir-insider Generals of Paul Malong category, his former Chief of Staff, also rebelling against Kiir at the 11th hour in 2018.

How is it that there is such wide spread rebellion against Kiir’s rule all these past 10 years?

The missed opportunity of instituting a TFCSS in 2011, has now come back full circle to haunt the people and the country four years on in the ARCSS 2015, and in the yet to be concluded revitalized ARCSS 2018.

A Transitional Federal Constitution was resisted by SPLM and Kiir in 2011, furthermore in ARCSS2015, and lately in so-called Khartoum Revitalized ARCSS 2018 through the HLRF process.

This serial and persistent rejection by President Kiir of a TFCSS as an interim social contract for the people and the country, in 2011, 2015, and 2018 is now very ominous.

The very existence of South Sudan under Kiir’s and JCE rule as a country is in question. In the face and throes of the ongoing polarization and ethnic fault lines fueling the current civil war in the country, destroying what was left of the social fabric, the people are left with stark and difficult choices to make for their own future existence and governance.

In this Kiir’s business model for the country, at highly incalculable operating cost to the country, Kiir has become the law of the land and CEO, deriving his authority from a small minority of so called Jieng Council of Elders (JCE).

A clique and assembly of his section of Dinka tribesmen and women from the tiny state of Warrap, now running the government business in Juba as the clan’s owned business. This business model bears unashamedly no resemblance to that of a state.

The clan government does not forbid Salva Kiir to sell all the wealth of the country, deny or delay all justice, deny the rule of law and deny responsibility to protect villages, homes, and rights of hundreds of thousands of innocent citizens who were either killed or displaced by Mathiang Anyor Dinka militia and army in Equatoria, Bahr al Ghazal and Upper Nile.

As recent evidence shows, Kiir’s business operating costs in the $40,000 order of magnitude per MP for car purchases, pales into insignificance, when resources are diverted as unquestionable urgent expenditure to buy Kiir’s rule tenure extension, without the least regard for austerity the country’s economy is reeling under.

To date, there is no accountability for government business profit and loss, and it is most unlikely there will ever be one with Salva Kiir as CEO, or with Dr. Riek Machar as his Deputy CEO under the regional IGAD countries’ “impunity business model” Agreements for South Sudan.

The autocrat, since 2010 quickly morphed into a kleptocrat, who didn’t hesitate to disown the interim social contract which the TCSS 2011 represented, and illegally decreed the creation of 32 states without due process nor by any legitimacy conferred by ARCSS 2015 that he was expected to implement in letter and spirit but had chosen not to.

In July 2016, Kiir without opting for peace unashamedly chose violence against his peace partner, and disowned ARCSS 2015 in its wake, sadly did so with utter impunity.

This is the unseemly peace partner to be rewarded and entrusted with heading government business to implement another revitalized ARCSS 2018 that gives Kiir the legitimacy he desperately needs to stay on in power for another three years.

Another three years for the people of Greater Equatoria Region, with half of the 64 tribes in its territory, meant continued denial of entitlement to their economic, social and cultural rights, peoples and human rights, and for them to have no say in the affairs of their governance and existence under Kiir’s kleptocratic rule.

The same is said of the people of Greater Bahr al Ghazal and Upper Nile regions. Having disowned the transitional social contract of the TCSS 2011, there is no basis of legitimacy for Salva Kiir to rule the country and to further resist the establishment of a new peoples transitional social contract for a union of peoples by an agreement under a new Transitional Federal Constitution 2019.

Salva Kiir is now without doubt an obstacle to peace in South Sudan, and he must resign and go to let the country pick up the pieces of the damaged social contract and fabric.

To stitch them back together after he completely destroyed it, requires a new people’s driven social contract and the will to affect the three autonomous regions people’s union in a Transitional Federal Constitution for a Transitional Federal Government (TFGSS).

The denial of justice and rule of law for another three years of rewarding illegitimacy and impunity by the Kiir Revitalization Agreement (KRA 2018) in Khartoum, is not what the people wanted, rather it is what IGAD wanted, it is what Sudan and Uganda wanted for SPLM and other elites to grant Kiir another lease of underserved legitimacy.

The way forward is people-centric

There is no other fairer way that the SPLM and Kiir’s tribal elites strangle hold on power in South Sudan can be broken without returning to the historical devolution of power to the people in the former three autonomous regions of Upper Nile, Equatoria and Bahr al Ghazal under a Transitional Federal Constitution.

This is with the view that the regional state governments together with the people’s union government would derive legitimacy, authority and power from the people of the three regions.

Legitimacy is shareable between peoples but is indivisible and inseparable for sharing between elites without representation and mandate. The elites-centric power sharing of the KRA 2018 rewards the elites at people’s expense.

The responsibility sharing equally between the three regions in a federal social contract offers a fairer basis on which to rebuild the country’s broken social fabric and restore the rule of law and justice under the constitution. The restoration of the ruptured social fabric, justice and the rule of law is needed to maintain the unity of South Sudan as a nation.

This will not be complete without bringing Salva Kiir to stand trial for the crimes he committed against the people and the state after independence.

Until Salva Kiir is tried before a competent court of law for crimes of state corruption and atrocities against the people under his rule and policies, the rule of law and due process in South Sudan would not be restored or established for future posterity to live in peace.

Kiir must be tried under the rule of law for the country to save and redeem itself. It’s only when the rule of law is taken for granted in South Sudan, that the human and people’s rights, their social, cultural, economic and political rights, and equality of opportunity will be protected for all citizens, communities and peoples of the 64 ethnicities.

There is no way individual accountability will be skipped by a People’s Democratic Government for crimes committed by political leaders in any public office of the state. The long arm of the law will reach near and far places to end impunity and corruption in every corner of the country. All those identifiable leaders in public office roles who are found to be associated with aiding corruption whilst in public office or were directly engaged in commission of corruption for self-interest at the expense of the public interest, will be held to account under the law. That is what the country needs in order to change and move forward.

The authority, legitimacy and power of the Government lay with the people, not with Salva Kiir, nor with SPLM factions and elites without representation and explicit mandate of the people. This premise is essential to set expectations of negotiation for a realistic and sustainable peaceful settlement to the conflict, and without conditions for rewarding sacred cows by the agreement.

Thus, in order for any current or new genuine efforts to succeed and restore peace in South Sudan, the efforts need to shift the focus away from rewarding elites-power sharing to a distinctly people-centric peace-making, one in which the people are active participants in decisions on fundamental matters of their existence and governance.

Compelling grounds both humanitarian and political now exist that impunity, in which the people and the country are trapped for perpetuity must be challenged and ended with Kiir’s rule once and for all.

The people, an entire one third of the country’s population and size, as that in Equatoria region who demanded a federal constitution and governance for the country, like those calling for the same in Upper Nile and Bahr al Ghazal regions, are without voice, rights or authority to freely exercise political power and decision making by legitimate constitutional mechanisms over affairs of their governance and existence.

The 64 different ethnic groups, 32 of them in one region alone are together treated as an insignificant minority whose voices through multiple peoples conferences in 2011 and 2012, are disregarded and accorded no political space so that Kiir can continue to rule with impunity.

The people in Equatoria, Upper Nile, Bahr al Ghazal must stand up to challenge Salva Kiir’s illegitimacy and demand to exercise and enjoy their economic, social, cultural and political rights, human and peoples’ rights in their region without encroachment by concentration of unlimited powers in the hands of a President who is not himself or herself subject to the rule of law.

And without this constant of the rule of law, peace in South Sudan would remain an illusion, as long as IGAD’s “impunity peace agreements” model continue to be the regional favored game plan for South Sudan.

The international community and the region could help end the war and facilitate the negotiation of a realistic and sustainable peaceful settlement by standing with the people against impunity and tyranny, and de-recognizing Salva Kiir led government as illegitimate, led by a kleptocrat who must be denied diplomatic recognition and support. END

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