Dr Riek Machar was brought to Juba as a part of the 2018 Revitalized Agreement on the Resolution of Conflict in the Republic of South Sudan (R-ARCSS.
He was brought after President Salva Kiir and the Transitional Government of National Unity R-(TGoNU) promised to ensure his safety and personal security.
The parties to R-ARCSS also promised the international community that they would not return the country to war and would work diligently and collectively for the sake of peace and stability of the country (Article 1.4.2 of the R-ARCSS).
The parties further pledged to use national resources wisely and transparently for the best interest of the people (Article 1.4.2 of the R-ARCSS). R-ARCSS puts in place efficient mechanisms for achieving peace and stability. In their commitment, the parties agreed to work as a team, and appealed to the international community for support and cooperation.
Relying on the commitment of the SPLM-IG as stipulated in Article 1.4.2 of the R-ARCSS, IGAD and the African Union (AU) in collaboration with the international community brought Machar to Juba without any personal protection forces. The international community relied on the promise of President Kiir and his government to protect him.
The work relationship under R-TGoNU is collaborative and teamwork. This is because the design among the parties makes them equal partners in the implementation of R-ARCSS.The creation of the Presidency made up of five vice-presidents and the president makes the principal parties more of partners than the ordinary government officials do.
The above position is certified by the R-ARCSS Article 1.9.6, which provides that the decision-making and consultation within the Presidency must be collegial. The phrase collegial collaboration refers to the cooperative relationships, particularly in professional settings, where individuals with shared expertize work together to achieve common goals.
It should be understood that the phrase collegial collaboration changes the normal concept of government under the R-TGoNU in South Sudan from hierarchical system to a partnership. This changes the normal government protocol within the Presidency from the typical subordinated relationship to the partnership.
The main goal of inserting the phrase collegial collaboration in the Revitalized Agreement was to foster teamwork, collective leadership and national unity within the Presidency that would lead to better outcomes. It is for this reason that Article 1.9. 1 of the R-ARCSS, provides that the R-TGoNU is founded on the premise that there shall be collegial collaboration in decision-making and continuous consultations within the Presidency.
The President, the First Vice-President and the four vice-presidents are required to work as a team during the transitional period. In the same line, Article 1.9.2 of the R-ARCSS further provides that powers exercised by the President must be in consultation with the First Vice-President, and the four vice-presidents.
R-ARCSS further expands on articles 1.9.1 and 1.9.2 under 1.9.5, which provides that the powers exercised by the President in consultations with the First Vice President and the four vice- presidents in supervising the implementation of the reforms shall be exercised in a way that will enable the parties to reach mutual understanding and agreement. The parties are required under Article 1.9.5 to oversee the following:
- The implementation of the R-ARCSS (Article 1.9.5.1);
- The preparation and consultation of the R-TGoNU’s business and programs (Article 1.9.5.2); and
- Implementation of laws passed by the Transitional National Legislature (Article 1.9.5.1).
The concept of the rule and supremacy of law is embedded in the provisions of the Revitalized Agreement. This means that in the process of the implementation, the parties must work in accordance with the law transparently and honestly. The parties must not use politics to kill the Agreement.
The system of government established under the R-ARCSS is a partnership in nature where the President cannot do anything without the approval of the four vice-presidents headed by the First Vice President. The Presidency under the R-ARCSS is like a board of directors. This system needs transparent and accountable collaboration among the leaders for it to work.
The Agreement requires them to work under the collegial collaboration to ensure the effective governance. The Presidency system established by the R-ARCSS embodies the values of constitutionalism, rule of law and separation of powers.
The R-ARCSS limits the executive powers of the President. The President is required to stick to the Agreement and other laws in resolving disputes in the process of implementing the R-ARCSS. Hence, R-ARCSS introduces some conflict resolution mechanisms, which include:
- Dialogue between or among the Parties to the Revitalized Agreement to resolve the dispute amicably through normal democratic process (Articles 1.9.6.1.2, 1.9.6.1.4 and 1.9.6.1.4.4 of the R-ARCSS). This may happen in normal administrative issues.
- A Party aggrieved in the course of the implementation of the R-ARCSS may resort to the court of law to seek redress and the court could compel the party in breach of the Agreement to observe its duties or responsibilities. It is for this reason the R-ARCSS under Article 1.17.1 of the R-ARCSS refers to the Judiciary of South Sudan that shall be independent and subscribe to the principles of the separation of powers and the supremacy of the rule of law.
- The principle of the separation of powers and supremacy of the rule of law creates the partnership relation that provides equal status among the principal parties to the R-ARCSS. That is why R-ARCSS provides that during the Pre-Transitional Period or where the Unification of Necessary Forces is not yet complete, the Parties shall remain equal and in charge of their forces throughout the Transitional Period (Articles 1.7.3.1 and 2. 4.1).
- Thus, according to Article 2.4.1 of the R-ARCSS, all the heads of Opposition Armed Groups shall be Commanders-In-Chief of their forces at the Cantonment Sites until the reunification is complete or until the end of Transitional Period. This implies that throughout the Transitional Period, the Heads of Opposition Armed Groups shall be accorded absolute respect.
- Where the matter, which is related to the implementation of the R-ARCSS is very contentious and may destroy the Agreement, the followings steps shall be followed:
- The Party to the R-ARCSS complaining against any actions deemed to be against the spirit of the R-ARCSS, shall make an official complaint to the Joint Monitoring and Evaluation Commission (R-JMEC).
- R-JMEC shall immediately inform the Ceasefire and Transitional Security Arrangements, Monitoring and Verification Mechanisms (CTSAMVM) to conduct investigations and make recommendations;
- After the investigation, the CTSAMVM shall report the findings to IGAD and R-JMEC;
- R-JMEC shall further prepare the progress report on the implementation of the Revitalized Agreement and make recommendations for the R-TGoNU for correction or where they have failed to progress in the implementation of the R-ARCSS;
- CTSAMVM can recommend actions, including criminal prosecution, against any party that stages armed conflict.
From the above procedures, it can be concluded that the action of the SPLM-IG placing the Chairman of the SPLM-IO under house arrest is illegal as it is contrary to the provisions of the R-ARCSS. Machar was brought to Juba by IGAD in collaboration with the AU and the international community and in case of his actions that may warrant his prosecution; the above procedures must be followed.
R-ARCSS grants him implied immunity that can only be lifted with the approval of AU. SPLM-IG can only take him to court upon the recommendations from the AU for two reasons:
The AU is the only body to approve his prosecution under the current arrangement. The AU and any other body that facilitated the coming of Machar to Juba cannot allow itself to be conspiring with the SPLM-IG to prosecute him for frivolous reasons.
It means that there is a need for neutral body formed by the AU Commission to investigate the allegations reported by IGAD that may lead to the prosecution of Machar in a court established or sanctioned by the AU.
Second, IGAD and AU cannot protect Machar if the investigation finds that he was indeed responsible for the actions the SPLM-IG complained against him. The two bodies can only ensure that there is fair trial by setting up the independent tribunal headed by the judges it appoints. IGAD or AU cannot be seen to be conspiring with the peace partner to destabilize South Sudan.
Where the SPLM-IG insists on going on with the criminal prosecution without the approval of AU, the best thing it can do is to take away Machar to protect its integrity and prevent injustices.
In conclusion, the current detention of Machar is illegal as it is against the Agreement. Machar must be released to go on with the implementation of the Agreement since there is no incriminating evidence approved by AU. The investigation was bias as the detaining political authorities did it. SPLM-IG does not have the powers to prosecute Machar without the approval of the AU.
The author, a lawyer by profession, is the Cueibet County member of the Transitional National Legislative Assembly on SPLM-IO ticket.
The views expressed in ‘opinion’ articles published by Radio Tamazuj are solely those of the writer. The veracity of any claims made is the responsibility of the author, not Radio Tamazuj.