The Republic of South Sudan The Jieng Council of Elders (JCE)

August 23, 2015

Remaining Contentious Issues

1.    Composition and Decision-Making in the Presidency

  • The first problem is found in Chapter 1, Article 9, Clause 9.1.1 & 2, which states that the President and First Vice President shall seek to reach an agreement on matters of Executive Administration and where appropriate involve the Vice President, especially if both the President and First Vice President agree to do so. There must be a definitive provision that ensures that the Vice President is not sidelined and relegated. He should participate all the time without having to be invited.
  • Clause 9.1.3 states that when there is a deadlock in the presidency, the matter shall be decided in the cabinet by 67% (two-third majority) and the decision of the Council of Ministers shall be final. This provision simply stifled the working relationship of the presidency and carries the potential to breed frustration and conflict. The President usually has the last word.

2.    Selection of Ministers and Deputy Ministers

  • The agreement provides for lottery-like selection of ministries
  • This has a potential to create potential problems and conflict.

3.    The decision making in the Cabinet

  • Like the presidency, the decision-making in the cabinet is mandatory to be 67% (two-third majority) to reach an agreement, it the absence of consensus. This is not a suitable arrangement.
  • As stated above, it carries the potential for conflict and may frustrate the normal functioning of government.

4.    The nomination of governors of three states, Jonglei, Upper Nile, and Unity State and the Power Sharing Ratios

  • Chapter 1, Article 15, Clause 15.1 stipulates that the governments of the Upper Nile region would have to be reconstituted and that the Opposition shall nominate the governors of Upper Nile and Unity States, while the government shall nominate the governor of Jonglei State.
  • The most obvious problem with this provision is that it creates a special status for three states without providing any proper justification. This has a potential to perpetuate conflict in the region and raise stakes for ethnic competition.
  • Clause 15.2 of the same article, provides power sharing ratios for the three states as 46% for the GRSS, 40% Opposition, 7% FDs and 7% for other parties.
  • The problem is why create a special status for the three states? This has the potential to stoke ethnic competition and raise tensions and potentially lead to internal fighting in the three states.
  •  What is more absurd is that the Upper Nile shall always feel that it has a special status and this does not bode well for the unity of the country.

5.    The demilitarization of Juba

  • Chapter 2, Article 5, Clause 5.1 talks about the redeployment of the army 25 KM outside Juba to begin one month after the signing of this agreement and completed three months later.
  • This is obviously a matter of sovereignty and there is no real justification for this, unless there is something sinister being hutched somewhere.  Therefore, it is unacceptable.

6.    The question of maintaining two armies for 18 months

  • Chapter 2, Article 7, Clause 7.1 discusses the unification of forces as a process that shall take 18 months.
  • This is obviously problematic, as it is difficult to have two military command structures in one country. The proposal of the government was more reasonable, which talks about 90 days integration process and there shouldn’t be any need for extension, it shall be determined by the ceasefire mechanism.
  • Those who insist on having two armies in one country should be treated with serious suspicion.

7.    The issue of Hybrid Court

  • Its jurisdiction and its powers are of tremendous concern.
  • More importantly, Article 3, Clause 3.5.5 of the same chapter, when read together with Article 4 of this chapter, there are so many red flags that should be raised.
  • Clause 3.5.5 talks about criminal liability, stating in no uncertain terms that no one shall be exempted from criminal responsibility on account of their official capacity as government officials, an elected official, or claim defense of superior orders.
  • Article 4 (although the numbering is confused) of this chapter states that, individuals indicted or convicted by the HCSS shall not be eligible for participation in the TGNOU, or in its successor governments for a period to be determined by law, or, if already participating in the TGNOU, or its successor governments, they shall lose their positions in the government.
  • If the two clauses above do not cause you concern, the analyses above is very clear. In fact, these are the two most dangerous clauses in this agreement more than anything else. If the government accepts this, it should rest assure that the president could be remove from power. No matter what the pressure may be, we should not accept these two clauses. It is better for the president to be arrested forcefully, rather than being sent off to foreign courts.

8.    The powers and composition of JMEC

  • Chapter 7 discusses the establishment of the Joint Monitoring and Evaluation Commission (JMEC).
  • Its composition, leadership, mandate and powers is seriously harmful to the nation, see clauses 2.1—2.4 for this.
  • Clauses 2.5 and 2.6 talk about whom the chairperson shall be and how he will be appointed and who endorses its terms of reference.
  • Articles 4 and 5 of this chapter discuss the institutions that JMEC shall oversee as well as the reporting mechanism. These articles are very serious; especially article 5 should be read carefully. It talks about JMEC reporting to IGAD, AU, UN SG and the UN Security Council. This is Trusteeship part supported by the provisions of Hybrid Court.
  • Article 6, gives JMEC additional leverage to ask TGNOU to accede more powers to it in order to break deadlocks. Therefore, JMEC has supreme mandate in the agreement over the Constitution and other laws in the country.

Signed on behalf od Dinka Elders:

  1. Justice Ambrose Riny Thiik
  2. Hon. Joshua Dau Diu
  3. Hon. Aldo Ajou Deng
  4. Hon. Charles Majak Aleer
  5. Hon Maker Thiong  Maal
  6. Hon. Daniel Dhieu Matuet
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