By Dr. Lam Akol
Nov 19, 2014(Nyamilepedia) — The current civil war in South Sudan, like all conflicts, must end up one day in a negotiated peaceful settlement. Although parties to the conflict realize this obvious fact, they try to extract unrealistic concessions from their opponents and in the process lengthen the conflict and new demands come in. I witnessed in Addis Ababa last August an informal argument between a member of the government delegation and another from the delegation of the rebels (SPLM/A-IO). The former asked the latter as to why they were asking for a federal system when that was not the cause of the war. The latter retorted: But Yau Yau took up arms because his election was rigged, how did he end up with an administrative area for Pibor? The gist of this story is that war is dynamic and keeps shifting, not only in the balance of forces but also in the demands of those who join the fray, and therefore the sooner it is brought to an end the better for all. Good negotiator must be conscious of this reality and understand that no agreement is possible if he/she doesn’t address the main concerns of the other side.
On the 9th of May, the two principals of the warring parties agreed that the Addis Ababa peace talks include all stakeholders. This decision was adopted by the 26thsummit of the IGAD heads of state and government on the 10th of June. As a full stakeholder, the political parties presented on the 21stof July to the IGAD mediators a paper outlining their position as to how the current civil war could be brought to an end through the IGAD-mediated negotiations. The salient points of the position paper were as follows:
- The shootout on the 15thof December 2013 was just a spark to the pent-up grievances and failures in governance since 2005. Hence, any resolution to the conflict must address the root causes of the crisis.
- There shall be an agreed transitional period led by a transitional government of national unity tasked to implement the peace agreement and prepare the country for free and fair elections towards the end of the transitional period.
- The Parties are to negotiate and agree on critical reforms in all sectors of the state, such as security sector, economy, service delivery, judiciary, civil service, etc. These agreed reforms, including implementation mechanisms, shall constitute the peace agreement.
- Given their record of failure in governing since 2005, the two warring parties are not alone capable of implementing the critical reforms demanded by the peace agreement that will pave way to a healthy multi-party democratic system after the transitional period. Hence the need to include other stakeholders in the transitional government.
- Despite their failure that led to the current crisis in the first place, the two warring parties have to lead the transitional government for the war to stop. It was suggested that the SPLM-in government and SPLM-in opposition share the top executive branch of government as President and Prime Minister, respectively. The rationale was that this is the only formula that can guarantee that power is not concentrated in one person or group.
- Power sharing ratios between the various stakeholders were suggested for negotiation.
This proposal was presented as a package for negotiations. We never for a single minute claimed or believed that it was a ready solution. It was just one among several to be presented by the stakeholders for negotiations. Indeed, all stakeholders presented their various positions in a plenary of IGAD mediation in Addis Ababa on the 15th of August 2014. The delegation of the political parties tabled the same position paper.
It is a cause for optimism that the political parties’ formula for the top executive (President/PM) has been adopted. However, we are concerned that the focus of attention is unduly turning to one aspect of the problem (power sharing) but it is clear that there is an attempt to empty the original proposal on the powers of the President and the PM from its contents, rendering it worthless. The purpose of this paper is to explain why a delicate balance needs to be preserved for the formula to work and to bring the debate back to its right course, which is what really do we want accomplished during the transitional period.
It must be stated from the outset that the crux of the matter is the reform agenda and accountability for the atrocities committed during the fighting. The transitional government is not the solution but a tool through which the agreed solution would be implemented. Therefore, the stakeholders should be expending much of their energies on discussing the reforms required to deliver to our suffering people a just and sustainable peace, not just a stoppage of war that will erupt again sooner or later.
What is meant by sharing power between the President and the Prime Minister?
Democracy is about checks and balances so that power is not abused by its concentration in one person or a group of people. This war was triggered by the struggle over power, hence power must be restructured as part of the solution. It is our considered opinion that to bring this war to an end and pave the way for a level ground for a peaceful South Sudan, executive power should be shared between the president and the Prime Minister.
Some will jump and say: but our constitution does not provide for a position of the Prime Minister, how come it is being discussed? The answer is that all stakeholders have agreed that the peace agreement that will be concluded at the end of the negotiations shall be incorporated in the Transitional Constitution of South Sudan. Hence, nothing stands against discussing ideas not included in the constitution. Others will also say: an executive Prime Minister would render the position of the President to be just ceremonial. Again, this is an expression of either ignorance or mere propaganda that has no basis in fact as we shall show below.
We shall consider a number of countries that are under a presidential system and have the positions of both the President and the Prime Minister, and briefly refer to the powers of each. The first example is France, the mother of Republicanism. The President is an executive president and deals with specific functions whereas the Prime Minister is the head of government, i.e., he presides over the meetings of the Council of Ministers and directs government’s business. Some will say that France is a developed country and may be far removed from our conditions. Then let us take two other examples in Africa; one in East Africa and another in North Africa.
In the Constitution of Rwanda 2010, the provisions related to the President and the Prime Minister are in Articles 116-125. whereas the President no doubt wields enormous power, the PM presides over the Cabinet and Article 118 defines the powers of the PM that include: appointment of civil and military officers with the exception of those appointed by the President, signs orders in respect of appointment and promotion of junior officers of Rwanda Defence Forces and the national Police, signs orders of the Prime Minister relating to the appointment and termination of service of specified senior public servants.
Egypt, which is historically a centralized state had for a long time adopted office of the Prime Minister in its constitution. For instance, in the 2012 constitution, the powers of the President are under Articles 132-154 whereas the powers of the Cabinet come under Articles 155-167. Article 141 stipulates that the President exercises his powers through the Prime Minister, his deputies and the Ministers except on some specified matters. Article 143 stipulates that the President may call the Cabinet for consultation on important matters and chairs the meeting in which he is in attendance. Article 155 stipulates that the Cabinet comprises the PM, his deputies and the Ministers, and that the PM is the head of government, supervises its work and directs it in the performance of its duties. Article 159 deals with the competences of the Cabinet.
It is to be noted that in both Rwanda and Egypt, the President may call for a meeting of the Council of Ministers to discuss important matters, and in this case he chairs the meeting. It is also noteworthy that in the three examples mentioned there is no position of a Vice President. More examples could be cited but the space shall not allow. What is important is to provide real examples of sharing power under a presidential system so that the debate is on substance rather than mere rhetoric or disinformation. What is required is to be creative enough in working out a formula acceptable to all. Some quarters have cited what one may term as fringe cases. These are not worthy of consideration here as these cases do not address our concern in this respect, which is a meaningful sharing of power, not empty titles.
The role of the other stakeholders
The current IGAD led peace talks are of multi-stakeholder format. It was also agreed that within this format there are other models, if need be, such as bilateral, trilateral, etc. Therefore, people should not lose sight of this fact. The attempt of the last IGAD summit for the two warring parties to agree on the definition of powers between the President and the Prime Minister was in place only as far these two positions are concerned since all stakeholders have agreed that the two positions go to them. However, the two warring parties have no right to discuss the other positions (Vice President and the two deputies to the Prime Minister) in the absence of the other stakeholders. In the same vein, the stakeholders should devote more of their time in negotiating other important aspects of the crisis such as governance, economic matters and security arrangements including power sharing percentages between the stakeholders.
Some detractors of the stakeholders are on record saying: we discovered that these stakeholders have an agenda. Of course, they have an agenda, otherwise why would they be stakeholders. The agenda of the political parties is to bring about peace as outlined above. We believe that the status quo is untenable and we need a sustainable peace that must bring about critical reforms and fight impunity. This is a public agenda and did not need to be ‘discovered’.
Others say: the political parties should have no position, their role is only to narrow the gap between the warring parties. This is absurd. The political parties are not mediators to be tasked with “narrowing the gap between the warring parties”. They have a position which could form the basis of the resolution of the conflict. As stakeholder, they have every right to try win over the other stakeholders to agree with them. A political party that has no position on such a vital issue as how to bring peace to our country is not worth the name.
In conclusion, the definition of powers between the president and the Prime Minister must be approached with an open mind so that we leave it behind us in order to embark on handling more serious matters in relation to the peace process. As important as it is, it is not the main concern in trying to work out a peace agreement. Let us not forget that the peace agreement is meant to correct the mistakes of the past, rebuild confidence of our people among themselves and between them and their government, and usher in a just and sustainable peace founded on good governance and respect of human rights.