By Riang Yer Zuor Nyak*
September 28, 2014 (SSNA) -- Africa, as Africans know it, is full of problems which generally include social, economic and political. In this chaotic environment, violations of fundamental human rights are common. Most of these human rights violations tend to be committed by governments or powerful individuals who have close associations with some sort of armed sources of power. Local law enforcement agents find themselves under the control and command of such violators. For this reason and others, bringing these types of perpetrators to justice is always next to impossible.
It is in this context that International Criminal Court (ICC) sometimes comes in to play so as to fill the gap. Some of the situations where grave human rights violations have been made on the continent include that of Liberia/Sierra Leon, Ivory Coast, DRC, Kenya, Uganda and etc. These cases were taken to ICC at one time or others after Africa had failed to deal with them. In other words, it is Africa’s inability to properly solve her own problems that makes the rest of the world, especially the West, interfere with Africa when universally prohibited grave human rights abuses take place.
Recent events involving the ICC show that African leaders are not happy with the Court, referring to its activities as re-colonization of the continent or unjust targeting of the African leaders. The irony is that in most cases, it is the African states that forwarded most of those cases to the ICC. Nevertheless, the African leaders feel embarrassed, threatened and exposed. They see a need to fight back so as to stop the ICC from coming after the remaining or future human rights violators. But they cannot do it alone. Therefore, they want to appeal to the ordinary Africans using the word “colonization” so that they can get support from the Africans in their opposition to the activities of that international court that has become a real threat to them. Their powers to maim the continent and her people at will have come under a real scrutiny of a court that they can never intimidate as it is located a sea away from the African Continent.
From the look of things, African leaders have not really been unjustly targeted as they claim. Rwanda happened in Africa; Liberian sponsored violence in Sierra Leon happened in Africa; Darfur happened in Africa; Northern Ugandan violence against civilians happened in Africa; post election violence in Kenya happened in Africa; DRC child recruitment into the rebel army happened in Africa; post election violence in Ivory Coast happened in Africa. The list is long. In any of the mentioned situations, no single African national court was able to deal with each of the situations. It follows that none of the African solutions was available. This was why the ICC came in so that justice could be provided for the victims.
In December 2013, Salva Kiir savagely killed tens of thousands of ethnic Nuer in Juba in just days, targeting them on the basis of their tribal origin. Up to now, no African leader makes any condemnation. They are just talking about whether or not there was a coup when they should be talking about whether or not there was or is genocide being committed. That there was no coup is now laid to rest as evidence point to the lack thereof; that genocide has been committed is clear. Yet African leaders still talk as if things are not yet clear.
Logically speaking, talking about what might have been the cause should have come second after a criminal was first stopped from his genocidal activities. But if Salva Kiir was not one of the so-called African leaders, a great deal of noises would have been made. Here, one can conclude that being a president in Africa has really become a card to destroy African lives at will. The club provides them with an immunity that one cannot find anywhere in the African written law books. These are criminals unlike their counterparts outside the continent. Therefore, the claim that African leaders were or are being targeted is out of question in each situation above. Each was and is a situation where a monster above local laws gets taken outside of his locality in search for justice for his victims. In simple words, a non-African solution sometimes becomes a necessity.
Then, why do African leaders make noises that they have African solutions for African problems when it is clear that they could not find their own proper solutions for the above-mentioned grave situations? The answer is simple. The African dictators do not have the confidence to rule Africa without hurting the Africans. They do not have what it takes to peacefully and voluntarily charm Africans into following them. They simply resort to violence to maintain their positions. To them, ruling with an iron fist is a strength of leadership for which one should be praised. When one is peaceful and democratic, one is labeled as a weak leader.
But these supposedly strong leaders feel threatened by the Court in The Hague. Each of them can see himself doing the same or similar thing in the future, or has already done what an African leader has been or is being taken to ICC for having done. Or some of them have already been indicted and that they do not want to cooperate with the Court and are out mobilizing colleagues or members of the club to come to their defenses in the diplomatic arena. So, when it comes to resolving a problem in which one of them is implicated, they would prefer an African forum which they can easily manipulate one way or another.
To the African leaders, especially some IGAD leaders, South Sudanese civil war is an African problem that requires an African solution since Salva Kiir is the accused author of the Juba massacres. They are not prepared for a situation where Kiir would end up somewhere outside of Africa answering questions regarding the massacres. They see their position on this as an exercise of independence on the part of Africa. The problem is that the process for the search for an African solution to this particular African problem is not funded by the IGAD. Non-African bodies funding this process can definitely influence the outcome. Then where is independence that IGAD is trying to assert? This lack of independence and the IGAD leaders’ need to protect one of their own can make a very dangerous combination. This danger was clearly demonstrated in the last IGAD Heads of State Summit in Addis Ababa in August 2014 when the Heads of State, including Salva Kiir, issued a document whose contents amounted to nothing less than a common declaration of war on the SPLM/SPLA.
The Summit drafted a protocol as a framework for the resolution of the problem. It provided for a transitional government to be formed in Juba. The document was not a result of any negotiation between the warring parties as the government delegation had boycotted the last round of negotiations which were to last till August 28, 2014. In absence of the government delegation, the IGAD Mediators asked the SPLM/SPLA to continue negotiating with other stakeholders. This was positively responded to, and the negotiations continued up to the time when the Summit was convened. Surprisingly, none of the negotiated positions were reflected in that IGAD Framework. Therefore, the document was not a South Sudanese document, and both Dr. Riek Machar and Salva Kiir rejected it—citing the need for the two parties to negotiate so as to make some concessional discussions before arriving at a final decision. At that point, the document was left to the IGAD Heads of State who said that it was “…our document and we will sign it as ours…” without the warring parties being part of the signing.
Something needs to be clarified for the benefit of those who were not present at the Summit. The document is widely discussed in the public media as having been accepted by the government, that it has been signed by Salva Kiir and that only the SPLM/SPLA declined to sign. That can never be any further from the truth. The truth is that both the SPLM/SPLA and the Government declined to sign as parties to the conflict. Yes, Salva Kiir—though tricked into signing by Gen. Sumbeywo of Kenya—signed the document by appending his signature on the signature page of the document without knowing what he was signing on to. Dr. Riek Machar was the second to be approached in this kind of trick and refused to sign a blank sheet of paper, saying that he was not ready to sign a “blank cheque”. He wanted to see, first, the document that he was being asked to sign. This was after both had rejected the document in the presence of many foreign observers. So, this Kiir’s signature was later used, not as a party to the war, but as one of the members of the IGAD Heads of State.
It is believed that some people are not aware of this distinction and the trick used on Kiir. But some quarters, such as the government in Juba and its agents, are actively working to cover up the story of the trick and mislead the public that Salva Kiir’s signature on that document represents the position of a party to the conflict so as to make it look as if it is only the SPLM/SPLA that has refused to sign. Others, such as IGAD and other international bodies, are intentionally and passively allowing the misleading statements to go uncorrected so as to achieve certain unfair goals. They can try as much as they want, but truth will always remain that the warring parties have refused to sign the IGAD Protocol and requested to be allowed to negotiate. Having no other choice, IGAD granted 45 days for the Parties to mutually negotiate and conclude their own deal.
The IGAD document is difficult to categorize. One does not understand whether the document was a product of a frustration with people and groups working behind the scene, or a result of a true and genuine IGAD’s understanding of the South Sudanese situation. Of course, one should not underrate the resolutions of the recent African Union (AU) Summit in June in Equatorial Guinea where the AU resolved to protect sitting African Heads of State from prosecution for genocide, war crimes and crimes against humanity. In either way, IGAD has shown a very serious lack of credibility as a regional body in dealing with regional issues.
By any standard, South Sudanese civil war is more serious and dangerous than the 2007 Kenyan post-election violence, which led to the formation of the Kenya’s Grand Coalition Government in 2008. Yet, that Grand Coalition Government was better than that which the IGAD leaders want to see established in South Sudan in terms of power-sharing. It is difficult to understand the thought processes leading to such a position.
The Protocol provides for a transitional national unity government to be headed by “The head of state and government, and commander-in-chief of the armed forces…” which “…shall be the elected, incumbent president.” According to the document, an office for a Prime Minister shall be established for coordination of the implementation of interim processes. This Prime Minister shall be nominated by the SPLM/SPLA and has to be “…credible, professional and competent person…” who shall also be “…acceptable…” to Kiir. In addition, the Prime Minister shall work “harmoniously” with the president and would never stand for any election for a public office at the end of the transitional period.
First, the document confirms Kiir as the head of the Transitional Government of National Unity without leaving it to the parties to negotiate. The justification seems to be that he was elected in April 2010. If this is the case, then the IGAD is wrong. Kiir was elected under a constitution and an election law which became irrelevant on the morning of July 10, 2011. He owes his current position as the President of South Sudan to the current Transitional Constitution which gives him up to July 2015. This makes him a President by constitution—not by election. It was the reason why he was able to remove the vice-president who had been his running mate during the 2010 elections. It was also why he succeeded in removing elected governors in Lakes and Unity states, respectively. Otherwise, he would not have succeeded in the exercises. Therefore, IGAD’s justification for him to lead the expected transitional government on the basis that he is an elected president does not pass the test. As a constitutional president, Kiir has ceased to be legitimate from the very same day that he embarked on the unconstitutional act of maintaining power through violence and committing the ultimate crime of genocide. He can no longer protect the constitution as he has made coups against himself by intentionally violating that constitution many times; he cannot be trusted again to protect the lives of the people of South Sudan as he has presided over numerous killings of the South Sudanese communities, the last one being the massacres of the Nuer in Juba in December 2013.
Even if he were to be an elected president, Kiir would not have been elected to bring the current situation. His unconstitutional acts of unleashing violence on his political rivals and genocide which led to the current situation would have de-legitimized his status as an elected president. Therefore, IGAD leaders just need to come out publically to the South Sudanese that once one becomes a president in Africa, one must always remain as such, however one behaves. That would be more understandable given our experiences as Africans who have only known dictatorships since decolonization.
Second, IGAD’s document was intentionally produced so as to indirectly prevent Dr. Riek Machar from participating in the transitional government. They badly want Kiir to lead the transitional government without opposition for bad reasons. But they know that Dr. Riek Machar would never again allow Kiir to rule the country the way he has been ruling it since 2005. To them, the best thing to do to ensure that Kiir does not get any opposition during the transition is to keep Dr. Riek out of that government.
Words such as “credible”, “professional” and “competent” as adjectives describing the Prime Minister were intentionally used so that the SPLM/SPLA could legally be bound to look only for a technocrat, non-politician other than Dr. Riek who is known as one of the well-known politicians in South Sudan when making its nomination. The word “acceptable” to the president was placed there to give Kiir a legal ground to reject Dr. Riek if the SPLM/SPLA later insists on nominating him for the post. Here comes the possibility of a stalemate. To water it down, a clause is inserted that the Prime Minister would not vie for any office after the transitional period. Again, that clause was placed there as an incentive for Dr. Riek to want to wait outside the transitional government so that he could later run for an office toward the end of the transitional period.
There is a question that keeps lingering on when looking at the IGAD’s attempt to erect such a massive wall around Kiir’s position and powers during the transitional period. Why is IGAD trying very hard to see that Kiir absolutely leads and controls the government during the transitional period? The provision that the Prime Minister shall work “harmoniously” with the president is the third legal hurdle for the SPLM/SPLA to deal with. In case the SPLM/SPLA succeeds with the nomination of Dr. Riek and Kiir fails to reject the same, he can later have a legal ground to remove the Prime Minister as not working “harmoniously” with him. This IGAD’s idea that Kiir should not be opposed in his decisions and activities during the transition is without a proper justification. This idea of Kiir running the government single-handedly during the transition makes one think that IGAD wants Kiir to use the period to repair his tattered self politically, militarily and diplomatically for any eventualities at the end of the period. This IGAD’s position should be taken together with Kiir’s statement on the 9th of May 2014 when he stated that he “…must always remain the leader…” of South Sudan. He is, definitely, being prepared for a longer political life after the transitional period. In light of this, IGAD could be seen as conspiring with Kiir against the people of South Sudan.
Third, the document is discussed on the media as a power-sharing one. The IGAD leaders have made it very clear that all the executive powers remain with the president. The president is the commander-in-chief of all the armed forces; he is the head of state; and he is the head of government to be assisted by his deputy in all of his functions. The office of the Prime Minister is created only to give the SPLM/SPLA a space to occupy with functions of coordination of the implementation. Yet, IGAD and its supporters call this a power-sharing arrangement. If this is power-sharing, then I do not know what is not. One would think that a proper power-sharing arrangement would equally divide executive powers between the two power centers: the Prime Minister and the President. But, this IGAD document has not done that.
The bottom line is that, for whatever reason, IGAD has failed in its search for an African solution to the current African problem in South Sudan. By coming out with the document of the last Summit, IGAD was only resorting to forcing the warring parties to come together in a badly conceived transitional government, which, in my opinion, would be another way of telling South Sudanese to stop fighting for now, go back to Juba and re-start fighting.
What IGAD should have done was to let the parties talk. Instead of being rushed into forming a transitional government under Kiir’s leadership, the parties should have been given time to identify and address the root causes of the war, agree on who is to account for the atrocities committed in Juba in December, agree on critical reforms to be made, agree on the security arrangements, agree on the form and structures of the transitional government that would carry out the reforms, and then agree on the leadership as the last step toward signing a peace deal. But IGAD unjustifiably jumped the gun and resorted to a process where they started with the leadership and then the government, leaving the rest unresolved. It was an attempt to simply force South Sudanese to go back to Juba under Kiir’s leadership without first addressing the root causes of the war—not even thinking of any reforms. That was very lazy, insulting to the people of South Sudan and disrespectful of those whom Kiir savagely exterminated in Juba. It can only add fuel to a burning fire.
In Somalia, an internationally recognized Federal government sits in Mogadishu. That government and its leadership are, at least, cleaner than the one sitting in Juba and its leadership. Yet, the African Union, including some of the members of IGAD, is struggling to keep that government in Mogadishu. They are unable to force Somalis to come together under that government and leadership. This difficulty exists partly because the root causes of the Somalia’s problem, leading to the collapse of the central government in 1991, might not have been properly identified and addressed. After years of struggling with the situation, they still keep thinking that the problem is a lack of a central government in Mogadishu that can only be solved by putting one in place. It is a real failure.
This same IGAD is now trying to force the people of South Sudan to come together in a badly conceived transitional government under Salva Kiir who has committed genocide against a section of the South Sudanese society without first addressing the root causes of the December violence. IGAD should understand that our problem is not a lack of a transitional government; in fact, the current government in Juba is a transitional government; it should understand that the problem that caused the war was not that Kiir was not a president; he had been the president before the war, and he has been the president ever since the war broke out. Yet, we are in a big problem. Therefore, IGAD should stop thinking that having a transitional government led by Kiir is the magic African solution to the current war in South Sudan. This is a solution that can never be sustained. If this is the only solution that IGAD can think of, then it must, instead, come out clearly and openly to admit that it has failed so that a different forum can pick up the task.
The way things look seems to suggest that IGAD has failed and decided, as an exit strategy, to impose Kiir on the people of South Sudan as a temporary solution to the problem. What comes after that imposition does not concern it. It is completely conceived and done in the best interest of IGAD, not in the interest of the people of South Sudan. This is absurd. What makes IGAD leaders think that they should oppose non-African solutions to African problems, but impose a non-South Sudanese solution to a South Sudanese problem? It is like trying to drive the people of South Sudan to the sky above by leading them into an abyss dug perpendicularly deep into the ground hoping and believing that, somehow, the abyss would eventually lead to the blue sky above the ground. This is a blind-mindedness that can only be induced by dictatorial tendencies which characterize leadership in most of Africa.
In any case, an intellect is, definitely, being insulted here. It is only a question of whose intellect it is that is being insulted: South Sudanese in particular, or African in general?
While in the process of finding a solution to the current civil war in South Sudan, IGAD must know, in case it does not know yet, that Kiir has committed genocide, and he must be dealt with as a criminal—not as what it refers to as an “elected, incumbent president”. A proper and sustainable African solution should be that which keeps the criminal behind bars, and away from participating in the transitional government.