THE OTHER SIDE OF THE LAW
By Biel Boutros Biel.
March 01, 2016(Nyamilepedia) —– On 8 February 2016, Part I, of this argument made an analysis on article 7 of the Communiqué on South Sudan which was issued by the Council of Ministers of the Intergovernmental Authority on Development (IGAD). The IGAD Council of Ministers in its 55th Extraordinary Session held on 30-31 January 2016 in Ethiopia’s capital Addis Ababa, availed a version of 15 points regarding the steps forward for the implementation of the Peace Agreement signed by the warring parties and other stakeholders in August 2015. Arguably, as we stated in Part I, it remains to appear that most of the commentators on the Communiqué have had a fair settlement on articles 1, 2, 3, 4, 5, 6, 8, 9, 10 11 and 15 of the Communiqué as being less controversial.
Having analysed article 7 as one of the most deliberately misinterpreted parts of the Communiqué, this Part II interprets articles 12, 13 and 14 of the Communiqué. The notion is to demystify the interpretive maneouvres, by coherently outlining what the Council has diplomatically intended to communicate.
Article 12 of the Communiqué; shows the Council; urging the parties to the Peace Agreement that if no agreement has been reached in the implementation of article 7 that calls for a dialogue on a number of the new states which have to constitute of South Sudan, then any further operationalisation of the new states whether be it 28 states or otherwise, should continue to be suspended until different method deemed to bring a remedy is attempted. This means that since the parties must be deemed to have probably failed under article 7 that urges them to have a dialogue on new states after the formation of the new government, only a second attempt is to be given a trial. What is the second attempt on the new states? Here, it is that, the parties are directed to form, in the Council’s own words; an inclusive and participatory National Boundary Commission to review any proposed states and their boundaries for a period of a month.
What interpretive conclusion should one draw from the above wordings of the Council? Does it mean the Communiqué has suspended the operationalisation of 28 states or are they to remain operational until the parties agree on more states or disagree on the same? Or else should the 28 states continue to operate until the National Boundary Commission has its work come to light to nail these states off or bless them or have they been suspended forthright by the Communiqué?
In responding to the above significant queries, one should not fish for meaning in isolation but rather by harmoniously bisecting the trajectories folded under article 7 explained before as well as in sequence, dishing out the intention of articles 13 and 14 in furtherance of the diplomats’ intention.
The last part of article 7 of the Communiqué, calls for a dialogue by the parties on new states. The dialogue on new states has been prompted by the creation of 28 states but broadly, dynamics appear not necessarily restrictive to these causative 28 states. It seems, this is where the interpretive devil lies.
In order to have an effective dialogue, elaborating from the intention of article 7, commonsense would dictate that no dialogue can be held when the subject matter is in full operation. What else would be discussed if the matter of contention is on motion as though nothing is of concern against or about it has been talked of? That is, precisely to say, an injunction, borrowing the language of a court of law, has to take effect on a thing that causes adverse repercussion on one party and until such a time the issues thought controversially over such a matter in dispute, are determined. Subject as it is, so have been the 28 states and other indirectly ‘suspended’ proposal of more states before the Peace Agreement was signed. This means that any proposal of states including the 28 states, have been put on hold by coming to force the Peace Agreement and the IGAD Council of Ministers’ Communiqué, the latter of which calls for dialogue.
Article 13 has also come quite handy in explaining the whole intention of articles 7 and 12 of the Communiqué. The Council has clearly directed the parties that they should revert to the provisions of the Peace Agreement, in the event of outstanding disputes at the end of the work of the National Boundary Commission set up under article 12 after the failure of the dialogue on new states being stipulated under article 7.
Precisely, article 13 that calls on parties to get back to the provisions of article 15(15.2-15.3) of the Peace Agreement that provides for ten(10) states, echoes Council’s admission of the difficulties ahead of the new government over the question of new states. Here, one could predict the intention of the Council as garnered in its condemnation of the creation of the ’28 states’ being designed in violation of the Peace Agreement. For continuity, the Council’s frank condemnation in diplomatic language, has been smartly scooped to the fore, under first part of article 7 of the Communiqué.
Article 14 of the Communiqué has confirmed the supremacy of the Peace Agreement and in acknowledging this fact; the Council has called upon the parties to form the new government on the provisions of article VIII(8) of the Peace Agreement. This part provides for the supremacy of the Peace Agreement over the Constitution or any other national legislation; even if the Peace Agreement were to be deemed to have been incorporated to the Transitional Constitution of South Sudan of 2011!
Here a keen reader and composed citizen, would draw a significant conclusion that article 14 has become a sweeping stick that effects the intention of articles 7, 12 and 13 which indirectly warrant the suspension of the operationalisation of 28 states. It equally appears to remain that any other proposed states not necessarily 28 states, shall never until a dialogue is attempted, be a subject of debate. Once the dialogue becomes abortive on new states, then the Council has gone further to suggest a second chance which it has procedurally availed by the initiation of an inclusive National Boundary Commission under article 12 of the Communiqué.
The IGAD diplomats in their Communiqué, have used a language that is crowded by the politeness of their career but if one goes further to demystify the intertwining discourses, there is hard truth to live by. That is, when one reads coherently from article 7 along with articles 12, 13 and 14, their intention indirectly suspending the operationalisation of 28 states or any other states until a dialogue and work of the National Boundary Commission is attempted, cannot be mistaken. Of course, politics won’t allow proponents of the proposed states to positively address their minds to the realities unfolded by the IGAD Council of Ministers’ Communiqué yet at the end of the day, unfortunately, when the consequences inked under article 15 of the same come to fruition, the loser, so sad to say; would be our beloved country; South Sudan. Here, an appeal should be made that; let the parties especially the proponents of the 28 states be guided by love for having a nation and not emotions poured forth in own media outlets. In conclusion, any act done outside the guidance offered by IGAD Communique, remains a violation of the Peace Agreement.
The author; Biel Boutros Biel is lawyer and currently member of the National Constitutional Amendment Committee (NCAC). His areas of research interests are in democratisation, rule of law, constitution, transitional justice, refugee law, international humanitarian law and international human rights law. The views expressed in this article do not represent any of the institutions he is associated with. The author can be reached at firstname.lastname@example.org