Crisis and Opportunity in South Sudan

Published: 
January 8, 2014
By: 
Princeton N. Lyman, Jon Temin, Susan Stigant

Only two and a half years since its birth, South Sudan is in crisis. But, horrific as the violence since mid-December has been, the crisis also presents an opportunity to put South Sudan back on the path of democratization, good governance, and peace. USIP’s Princeton N. Lyman, Jon Temin, and Susan Stigant examine what needs to happen to create a foundation for lasting peace and stability.

Summary

  • Ongoing negotiations to end the South Sudan crisis cannot simply return the country to the previous status quo. For lasting peace, the negotiating parties and mediators will need to reach beyond national political elites and those bearing arms and invite active involvement of the international community.
  • South Sudan needs to build national cohesion and address fundamental issues of governance, democracy, and human rights. Restarting the stalled constitution-making process presents an opportunity to achieve these objectives.
  • Following negotiations, a broad-based, inclusive, interim government that includes a degree of joint South Sudanese-international community administration and management should govern and ensure preparations for new elections.

About This Brief

This brief analyzes the crisis in South Sudan and strategies for building lasting peace in the young country. Ambassador Princeton N. Lyman is a special advisor to the president of the United States Institute of Peace and the former United States Special Envoy to Sudan and South Sudan. Jon Temin is the director of the Africa program at the U.S. Institute of Peace. Susan Stigant is a senior program officer at the U.S. Institute of Peace. The views expressed here are those of the authors, and do not necessarily reflect the view of the U.S. Institute of Peace, which does not take policy positions.

Introduction

Only two and a half years removed from its birth, South Sudan is in crisis. A political dispute
between President Salva Kiir and Dr. Riek Machar, his former vice president, has quickly taken on
ethnic overtones and escalated into widespread fighting, with dire consequences. The exuberance
and optimism that accompanied independence is all but lost. In its place is fear of another failed
state and civil war in the heart of Africa.

Negotiations between delegations representing President Kiir and Dr. Machar have started
in Ethiopia under the auspices of the Intergovernmental Authority on Development (IGAD), an
organization of eight East African countries. The negotiations have so far focused on securing a
ceasefire, a positive first step to bring an immediate end to the killing, destruction, and displacement.
But this is only the first of many steps. Horrific as the violence since mid-December has
been, the crisis also presents an opportunity to address unresolved issues and put South Sudan
back on the path of democratization, good governance and peace—a path from which it deviated
well before the current crisis.

First Principles

The negotiations should be guided by three core principles.

  • First, there cannot be a simple return to the previous status quo. Too much blood has been spilled, and the status quo will not solve the underlying problems that led to the crisis. Indeed, no short-term agreement will be sufficient if it does not lead to a longer process that addresses the underlying problems in South Sudan's political system and chart a future
    that will be acceptable to most parties. A return to the status quo, in either the government
    or leading political party, only invites repeated failure.
  • Second, the negotiations should reach beyond national political elites and those bearing
    arms. State-level officials must be consulted, engaged and informed about the agenda,
    issues and options for agreement. Members of parliament ought to be briefed regularly and
    encouraged (and supported by international partners) to update their constituents. Civil
    society should have a robust role, serving as a mechanism for citizen input to negotiators and
    mediators and monitoring deliberations. Regular press conferences are needed to inform
    media so that radio, newspapers, and social media can help to quell misinformation and
    rumor, rather than incite violence. Youth and women must be present and heard from. A narrow
    bargain among elites, which has been the standard practice in negotiations in Sudan and
    South Sudan, only perpetuates the exclusionary and corrupt politics that are one cause of the
    crisis, and will inevitably lead to future crises. The constitution-making process is one way to
    move beyond the pattern of elite deal-making—provided that the mediators encourage this
    as part of the talks.
  • Third, the international community must play an active role in helping to define the longterm
    process crafted during negotiations and be a substantive participant in it. Governments,
    regional organizations, nongovernmental organizations and concerned individuals
    around the world have been seized by the crisis and responded with relative haste. A major
    increase in U.N. peacekeepers is in the works, more than 60,000 South Sudanese are under
    U.N. protection, and the costs of picking up the pieces of the economy and restoring stability
    will fall heavily on donors. South Sudan's history, notably the extensive international
    support for its people's right to self-determination and pressure on Khartoum to accept the
    referendum result, also sets it apart from other fragile states. This history places additional
    responsibilities on the international community (especially the United States, given its
    strong support for South Sudan), and puts an additional onus on South Sudan to constructively
    engage the outside world. The international community, as guarantors, monitors,
    donors, advisors and mentors, must insist that it be a constructive party to how this conflict
    is brought under control and South Sudan's future is defined.

Constitution Making

The process of developing a permanent constitution has the potential to be a vehicle for nation
building and reform in South Sudan. Work on the constitution has been stalled for some time.
Reasons for the delay included inadequate funds due to austerity measures, a hands-off approach
by the political leadership who had come under criticism for how they developed the Transitional
Constitution and who demonstrated little commitment, and significant constraints on media, civil
society, and "opposition" voices which in turn impaired efforts to initiate education and dialogue.
As a result, international donors and partners hesitated to commit support, which only compounded
the financial gaps and absence of an effective political champion.

This failure presents an opportunity, and revitalizing and reforming the moribund constitutionmaking
process should be a South Sudanese and international priority. The parties need to renew
their commitment to a constitution-making process that models democratic principles and sets
the stage for peaceful, credible elections. For this to happen, there must be sufficient resources
and support. And there must be an understanding that constitution-making is not strictly a technical
exercise. Rather, constitution making should be a vehicle to define a national vision, forge a national identity, and rebuild trust between citizens and leaders, among citizens and between
communities. Through nationwide civic education, consultations and dialogue, South Sudanese
must be encouraged to freely discuss fundamental principles: how powers are shared between
the national, state and local governments; how freedoms and human rights are guaranteed and
protected; how financial resources are raised and shared (especially sharing of oil proceeds across
states); principles for multiparty politics and internal party processes; and how powers are divided
across the executive, parliament and judicial branches of government to ensure accountability.
Questions of term limits, rotating leadership, sequencing and timing of elections and other ideas
should also be debated.

The process cannot succeed without fundamental changes. The National Constitution Review
Commission has little to show after two years, and the continued efforts by individual staff and
members will not bear fruit without significant structural reforms. Negotiators should look to the
2011 referendum as a model of an effective process. For example, negotiators should ask: Does
the current constitution-drafting body enjoy the trust, respect and relationships (within South
Sudan and with international partners) as did the Southern Sudan Referendum Committee (SSRC),
which was ably chaired by Chief Justice Chan Reec Madut? Does the commission have clear counterparts
and sufficient gravitas to negotiate a balance between independence from the executive
and cooperation with the government, as did the SSRC?

Negotiators should also consider proposing a constitutional amendment to make the process more
people-centered. This could be achieved by extending the period for the national constitutional conference,
guaranteeing participation by state and local representatives and providing for adoption through
a popular referendum. Any proposed amendment should be introduced according to law, debated by
parliament, and subject to popular input. Given their positive relations with South Sudan, South Africa
and Kenya may be able to provide advice on and support to such a process.

The constitution should also incorporate a clear commitment to accountability and mechanisms
to investigate, document, and address alleged human rights violations and atrocities. Accountability
has been brushed aside in all of Sudan's previous peace agreements, including the celebrated
Comprehensive Peace Agreement. If that happens again, many South Sudanese, especially victims
of politically-motivated violence, will see any new agreement and constitution as business as usual,
and the process will again result in failure and violence. There are many possible models, among
them truth commissions, trials, reparations, and hybrid or international courts. The negotiating
parties should commit to supporting the design and implementation of a fair, transparent and
legitimate process. Further, negotiating parties and mediators should consider whether individuals
who fail to subject themselves to the agreed authority and procedures—as witnesses, victims or
alleged perpetrators – should be excluded from participating in government for a period or face
other sanctions. For its part, the African Union and broader international community should insist
on accountability mechanisms that have credibility with the South Sudanese population.

Finally, international experts and advisors should have a formal role in the constitution-making
process. There is some precedent for significant international participation in a country's constitution
making. Namibia's constitution was developed with international participation as a prelude to its
independence. Kenya invited two international experts to serve on the committee that prepared the
constitution for the 2010 referendum following the 2008-2009 post-election violence. The circumstances
in South Sudan are different than those in Namibia and Kenya. Nonetheless, international
participation in South Sudan could complement (and should support) national expertise and robust
civil society engagement to prevent elite deal-making that ignores the interests of the general public
and build confidence among various communities about the process—and even the outcome.

Interim Phase

If the negotiating parties are assured that the constitution-making process will address their fundamental
concerns, then negotiations should turn to how South Sudan should be governed between
now and the next elections, currently slated for 2015. These conversations should address who
governs, how decisions are made, and what other transformation processes need to be prioritized.

It is unlikely that President Kiir would agree to step down as part of any agreement, nor would
that be the likely position of international mediators. He is the elected president. But there could
be agreement on a broad-based government of national unity until the next elections. The interim
government should be broadly representative of ethnic groups, geography, and political leaders,
including some of the senior politicians of the Sudan People's Liberation Movement (SPLM) detained
when the crisis erupted.

During this interim phase, a degree of joint South Sudanese-international community administration
and management should be instituted. The international community can reasonably insist
on this until the next elections, as much of the burden from this conflict will fall on the donors. One
potential model to consider comes from Liberia, where the Governance and Economic Management
Assistance Program (GEMAP), though not perfect, instituted significant international community
oversight of expenditures in an effort to combat widespread corruption, which is also a factor in
South Sudan's political impasse.

Drawing on the GEMAP model and other similar experiences, a joint South Sudan-international
community committee should be established to assess the state of the oil sector, the economy, and
how damage from the current conflict will be addressed. The government in Juba should submit its
budget and plans for approval to this committee. After this crisis, it would be a mistake to return to
budgeting and aid programs as before.

During the interim phase, a deliberate and sustained process of national reconciliation and
healing should be prioritized. A reconciliation process, led by the Church-based Committee for
National Healing, Peace and Reconciliation, was already underway before the crisis. The process
started in mid-2013 and has made cautious progress so far, and takes on greatly added importance
in the current context. At the same time, this process cannot be burdened by outsized expectations.
Any reconciliation process should be kept at arm's length from the government, especially if the
government is seen by some as instigating violence. It should benefit from external assistance and
support, but not be smothered by well-intentioned outsiders. The ongoing negotiations should address
how the reconciliation process will interact with the constitution-making process, and solicit
commitments from all parties to participate in, and never impede, reconciliation. Church leaders
should be brought into the negotiations at the appropriate stage to ensure that the reconciliation
process is protected and prioritized. As with constitution making, this is an area where South African
expertise and experience can be valuable.

Another major task during the interim phase will be standing down of military activity on all
sides. Ending fighting and providing humanitarian access on the ground – both of which should
be agreed to at the start of negotiations – have to be the first steps. Eventually there must be
reintegration of divided military units into the Sudan People's Liberation Army (SPLA) and, over time,
a thorough disarmament, demobilization, and reintegration process. But this can only succeed in
the context of the political processes discussed above. In the interim, the enlarged U.N. Mission
in South Sudan (UNMISS) should assume a greater role monitoring any ceasefire and protecting
civilians.

As the ruling party, the SPLM leadership must commit to undertaking significant internal
reforms to overcome the weaknesses revealed in the current conflict. An interim party leadership
structure and bodies will need to be formed until a new convention can be held. Nomination
procedures for candidates for local, state, and national positions need to be freely debated. Regular
communication between the local bodies, secretariat, and leadership structures need to be
implemented. Focus needs to shift from competition over titles to tolerating – and encouraging –
constructive policy debate, open dialogue, and productive dissent both within the SPLM and with
other parties. And if visions for the future of the party and its policies cannot be reconciled, the
negotiating parties and mediators may need to consider reaching agreement on principles and a
process for the peaceful dissolution of the SPLM and formation of new parties.

Most important, during the interim phase the government should prioritize delivery of services
and addressing the basic needs of South Sudanese. South Sudan cannot afford to wait to rebuild
and improve the lives of citizens. Only by building roads, providing clean water, training teachers,
and ensuring primary health care can the civil service and government begin to foster the trust of
its citizens and rebuild society and the economy. Without development and security, people will not
have the luxury to think, much less debate, about their constitution and future. And without a state
that can deliver, South Sudanese will continue to depend on ethnic allegiances rather than a strong
national identity.

January 8, 2014
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