Executive summary: JAN/28/2017;
The signing of the peace Agreement on the Resolution of the Conflict in the Republic of South Sudan (ARCRSS) in 2015 sparked cautious hope for a road to peace and putting back on track the state building process. However, two scenarios would determine the relevance of the agreement. The scenario for the best outcome meant some degree of political will and trust would move the implementation of the peace agreement forward, some milestones are reached with signs of economic upturn and reduced levels of fighting in parts of the country.
The scenario for the worst outcome means continued intransigence and a lack of political will illustrated by a collapse of the implementation process, resumed violent conflict throughout the country, increased poverty, human rights abuses, further economic deterioration, and the collapse of the formal market economy.
This policy brief looks beyond the relevance of the agreement and examines its legality. The brief points to the importance of the process given that a law-making system is legitimate when a prima facie duty of obedience exists either:
—(a) if there is actual unanimous consent to the jurisdiction of the lawmaker or, in the absence of consent, —–(b) if laws are made by procedures which assure that they are not unjust. The arguments put forward illuminate the status of the agreement and the legal implications of allowing ARCSS to collapse.
The grave consequences of which bear highly significant risks to long term stability and peace in the region for not doing things right, when the lessons and rules of the game aren’t heeded anymore by those who mediated the 9th January 2005 Comprehensive Peace Agreement (CPA,) between the Sudanese Peoples Liberation Movement and the Sudanese Government least TROIKA (United States of America, United Kingdom and Norway) and IGAD partners. IGAD is the Inter Governmental Authority on Development and its member States include: Djibouti, Eritrea, Ethiopia, Kenya, Somalia, Sudan and Uganda.
The implications of the collapsed Agreement:
The following are the legal implications of the collapse of the Peace Agreement:
a) In the absence of a valid and subsisting Agreement, the Government of South Sudan has no legal basis to function as a government. Thus, the decisions and actions of the Government of South Sudan now have no legal backing and thus null and void.
b) In the absence of a valid and subsisting Agreement, oversight institutions established by the Agreement such as JMEC and CTSAMM have no legal basis to operate. The decisions and actions of these oversight institutions, lacking legal backing, are, therefore, of no effect at all. Since these oversight institutions have nothing to oversee or monitor, their continued existence is not only illegal but also a waste of resources.
c) In the absence of a valid and subsisting Agreement, South Sudan is back to full-scale war. It is either that the Agreement be resuscitated, reviewed, revised or a new agreement be negotiated to bring the war to an immediate end.
d) The international community (UNSC, TROIKA) works with the African Union for restoration of a political order and legitimacy in which a revised, more inclusive and people-centric agreement would be implemented under AU and UNSC oversight institutions together with a mandate to enforce compliance.
e) IGAD to play a supporting role to AU and UNSC lead for restoration of legitimacy and doing things right by not changing the rules of the game that led to collapse of the Agreement in the first place.
ABOUT PDM: The People’s Democratic Movement (PDM) is a popular grassroots Movement formed by concerned South Sudanese in the country and the Diaspora; in response to the political crisis and fast deteriorating economic, humanitarian and security situation in the Republic of South Sudan. It seeks to offer the way forward amid heightened ethnic polarisation and devastating conflict in the country, encouraged and abated primarily by President Salva Kiir’s divisive Government policy, incompetent, oppressive and corrupt leadership.