By Tong Kot Kuocnin, Lawyer, JUBA, MAY/28/2015, SSN;
Peace-making accomplished through international intervention has had little success in achieving sustainable and durable peace not only in South Sudan but in many war ravaged societies.
In December 2013, south Sudan slipped back into chaos and despair, turning nine years of the internationally concluded famous Comprehensive Peace Agreement between the adversaries ending the longest destructive war in Africa’s largest country, the Republic of Sudan, in Nairobi,
Kenya, in 2005, robbing the state building efforts to dust.
South Sudan is currently again at its second round of regional and international intervention since returning to military confrontations in December 2013 following disagreement over manner and procedure of how party’s elections rules and regulations should be enacted, immersing deep the new state that was charting its way forward despite numerous inter-communal feuds rocking and raging on incessantly in many states in Bahr el Ghazal and Upper Nile States respectively.
There is daily violence and ongoing instability in South Sudan, with an uncertain future due to the ongoing undercurrents of conflict.
This author will focus only on the role of the constitution-making in the political governance transition in South Sudan. It is pertinently acknowledged fact that the provision of security is the number one priority of the government in peace-building and increasingly that the building and rebuilding of public institutions is a key to sustainability which constitute the successful political and governance transition which must form the core of any post-conflict peace-building missions and strategies in the society.
As have been observed in many war ravaged societies like Liberia, Haiti, Kosovo etc, conflict cessation without modification of the political environment, even where state-building is undertaken through technical electoral assistance and institution or capacity-building, is unlikely to succeed.
This is exactly the south Sudanese scenario which has now facilitated and provided an avenue for returning to war not with remote enemy but with itself because a substantial proportion of governance has resulted in weak, corrupt or limited democratic platforms.
The design of a constitution and its making process can play an important role in the political and governance spheres of the country if designed in a way that ushered in democratic principles and not dictatorial colours which could result into destruction and future sufferings.
The designing of the constitution after conflict provides an opportunity in creating a common vision for the future of the country and a road map on how to get to a stable and peaceful tomorrow if not Eden.
A good constitution can be a peace agreement among the people of the country and act as a framework in setting up the rules by which new democratic will operate.
An ideal constitution can therefore accomplish many things. It can drive the transformative process from conflict to peace and can seek to transform the society from one that resorts to violence to one that resorts to political means of resolving conflicts or political misunderstandings.
It shapes the governance framework that will regulate access to power and resources which are all key reasons to conflict and disruption of peace and stability in many societies including South Sudan.
A good constitution must put in place mechanisms and institutions through which future conflict in the society can be managed and averted without a return to violence.
The content of a constitution and the extent to which it sets up a democratic process is quintessentially important than merely divide the spoils between political elites will impact the country’s chances of keeping long-term peace as well as the quality of democratic principles created or established through it.
The current conflict could therefore be said to be a product of the transitional constitution which has been designed to vest all powers in the hands of one man, hence resulting of its entrenchment into the constitution and basic rules of the governing party, the SPLM, hence setting ablaze the whole country.
This is true because in the immediate post-conflict environment, the adoption of a democratic regime can assist the country in resolving the struggle for power by providing an accepted standard of who is to govern the country and its people.
This standard is based and anchored on an open and fair competition for power which is structured around the popular vote and not through the barrel of a gun.
In the longer term, adoption of participatory democratic governance structures is such a best option to ensuring sustainable and durable peace in post-conflict societies like South Sudan.
The evidence to this however suggests that in established post-conflict democracies, ethno-political groups are more likely to protest rather than to rebel, hence minimizing internal violence and return to conflict on wide scale.
Therefore, the creation of a predatory, shadow or authoritarian government legitimized by constitution in South Sudan is responsible for current political turmoil, instability and return to conflict on wide scale jeopardizing the prospects for the future of the country and its people.
Therefore, initiating changes to the political culture of South Sudanese society has been one of the most difficult aspects of its post-conflict transition which requires substantial changes to shape and readjust the behaviour of the militarists as to roles, norms and expectations.
But South Sudan has overlooked on wide scale these more intangible aspects of peace-building and maintenance in favour of technical rebuilding and assistance which are nevertheless essential to building and maintaining long term peace and stability in the country.
Ushering in the question of power sharing during the periods of transition after the conflict is a solution only to the short term political solutions but a container for holding fertile breeding grounds for the future conflicts which would be more devastating and destructive than the resolved one.
This is because formal executive power sharing leads to fragile peace with minimal violence but without reconciling the adversary parties to the conflict or addressing the underlying tensions and mistrusts created by the conflict and the broken social cohesion among the communities.
The power sharing government model is vulnerable to collapse when parties pull out or even threaten to pull out if the terms and clauses of the conflict resolution are not met or implemented as to the letter.
Hitherto, the formalized divisions of power along identity or ethnic lines appear to entrench the ethnic and divisive positions that can fuel the conflict in the future from another angle rather than ameliorating the conflict.
This will enhance the role of ethnicity and provide breeding grounds for future conflict because other ethnicities would appear even more radicalized against others due to the fact that ethnicity became a useful tool to use in order to get popularity and positions in the government.
The comprehensive peace agreement concluded in 2005 between the Government of Sudan and the Sudan People’s Liberation Movement the (SPLM) provides how to transit during the Interim Period and usher in the right to self-determination by the people of southern Sudan but felt short of how South Sudan should chat its way forward while transiting from Interim Period to its independence.
The accord also felt short to design the transition period for the new State and how to conduct elections in the new country, creating a vacuum and loopholes in governance, hence allowing the ruling party to monopolize the governance of the new state resulting into numerous violence and conflicts.
Therefore, if the conflict in South Sudan is resolved based on ethnic identity and ethnic lines, then it should be obvious that it is the suspension of the war in order to give momentum to the adversaries to get prepared for future devastating war and not the resolution of the conflict in its entirety.
If a lasting and sustainable peace is to be realized in South Sudan, it must not be based on ethnic lines but on the facts and issues constituting the outbreak of the conflict, addressing the roots causes of the conflict and provides strong and punitive avenues which may prevent the return to war and conflicts of the same scale in the country.
The root cause of this conflict has nothing to do with ethnic lines or identities but is more or less rooted down to principles and rules coated and shielded in dictatorial democracy within the ruling party.
Therefore, it resolution must move away from ethnicity and must not be connected with any ethnicities. It must be detached from any ethnic identity or ethnic lines which may create further conflict of devastating force in the future.
South Sudan is a home to more than sixty ethnicities and therefore, entrenching in legitimacy of two or three ethnicities will open up tunnels and windows for ethnicized government hence breeding more conflicts on ethnic lines which will devastates the country and its future.
Predictably, this conflict is the making of the government of South Sudan because since its establishment in 2005 to 2011, the government took the same path that caused the outbreak of the two wars, the Anyanya one and the 1983 SPLA rebellion against the oppressive and suppressive dictatorial regimes based in Khartoum which were predominantly Arab and their few allies in the Sudan.
It is the same character of the oppressive regimes in Khartoum that the government of Southern Sudan in Juba has inherited by devising the same modalities and criteria of resources distribution and governance based on divisive lines and an imaginable corruption on widest scale.
This conflict if not resolved well by the government by adjusting its ways of resources distribution and design new governance modalities, many wars will escalate as many are not happy as true stakeholders in the governance of their country.
The government must cease recruiting employees on demerits not on merits leaving out a sizeable competent, capable and highly educated number of people in favour of incompetent, incapable, corrupt and uneducated just in favour of mere individual loyalty of their political god’s fathers.
It is this manner of uneven and unequal distribution of resources and public participation that has precipitated and ignited this destructive and devastating war because since the creation and establishment of the government of southern Sudan in 2005 to date there has not been any delivery of the direly needed basic services to the poor due to recruitment of incompetent, incapable, corrupt and uneducated employees who are only loyal to their appointees and not the country.
Tong Kot Kuocnin is a Master of Laws (LLM) candidate at the School of Law of the University of Nairobi and a practising Legal Counsel at Deng & Co. Advocates. He can be reached at firstname.lastname@example.org.