Juggling a hot potato in South Sudan

30 July 2015

In December 2013, with unusual alacrity, the African Union (AU) established a commission of inquiry headed by former Nigerian president Olusegun Obasanjo into human rights abuses, which were just beginning in the civil war that had erupted a fortnight earlier in Africa’s newest state, South Sudan. The promptness of the AU had much to do with getting ahead of the game.

This was the AU asserting that Africa would deal with the newest crisis on the continent and that the likes of the International Criminal Court (ICC) need not apply.

The war rages on. But Obasanjo’s commission finished its report by the end of 2014. It tried to present it to the AU Peace and Security Council (PSC) before the AU summit in Addis Ababa in January 2015. But the PSC would not receive it. Some said that publication of the report would have upset the fragile negotiations underway between the chief protagonists, President Salva Kiir and his former vice-president Riek Machar, since the report was said to be highly critical of both.

South Africa’s Minister of International Relations and Cooperation Maite Nkoana-Mashabane puts it slightly differently. She told journalists in Johannesburg this week that the leaders decided to ‘lock it up’ because there was no political process to deal with the report and ‘implement the outcomes and the recommendations’.

In June this year, the PSC, meeting again at leadership level just before the AU summit in South Africa, again deferred the report, this time instructing their foreign ministers to meet in July to consider it. The PSC did meet last Friday in Addis Ababa with Nkoana-Mashabane in the chair, as South Africa is heading the PSC for the month of July.

The ministers received updates on the Intergovernmental Authority on Development (IGAD) peace process – now supported by an IGAD-Plus committee which added five countries representing each of Africa’s official regions – and the political peace process lead by Tanzania’s ruling CCM party and South Africa’s ANC.

They also received, 'formally and officially’, a summary of Obasanjo’s report and recommendations, Nkoana-Mashabane said. But again they decided to defer the release of the report, giving IGAD until the third week of August to decide how to implement it, including how to ‘make those who have to account, account’. IGAD will then report to yet another PSC summit, which will consider IGAD’s proposals and decide.

The long delay in releasing Obasanjo’s report has provoked strong criticism from various quarters, especially Western powers and human rights groups. They believe the AU is dodging its human rights and justice responsibilities since the commission’s mandate explicitly included holding perpetrators accountable.

Others, more charitably, say the AU is wary of releasing the report because Obasanjo’s commission apparently recommended that neither Kiir nor Machar should be part of a transition government of national unity. The commission proposed that a transition government take over the running of the country to deal with the conflict and its aftermath. Leaving them out would give the two leaders no incentive to stop the fighting, that argument goes.

Nkoana-Mashabane insisted this week that there would be no ‘cover-up’ and that the report would eventually see the light of day. 'It’s not going to be hidden under any cloud,' she said. In the meantime though, horrific atrocities continue, as detailed in a Human Rights Watch report last week on the offensive by Kiir’s government troops into Machar’s strongholds in Unity state between April and June this year.

And this week visiting US President Barack Obama weighed into the debate in a meeting on the South Sudan dispute in Addis Ababa with Ethiopian Prime Minister Hailemariam Desalegn, Ugandan President Yoweri Museveni, Kenyan President Uhuru Kenyatta, Sudan Foreign Minister Ibrahim Ghandour and AU Chairperson Nkosazana Dlamini Zuma.

Although there was no communiqué from the closed meeting, there has been speculation that Obama tried to persuade Museveni to withdraw his troops from South Sudan where they have been backing Kiir against Machar. Obama reportedly told Museveni that his military support to Kiir was encouraging him to continue fighting rather than suing for peace. This argument makes sense but Museveni’s response is not known for sure.

Before the meeting, at a press conference with Desalegn, Obama made it clear that America’s patience with the warring parties – and with the 19-month-long IGAD peace process – was wearing thin. He said that at the meeting on South Sudan he would be pushing for a peace agreement in the next few weeks.

'We don’t have a lot of time to wait. The conditions on the ground are getting much, much worse,’ Obama said, adding that he believed the US could be 'a mechanism for additional leverage on the parties, who, up until this point, have proven very stubborn and have not yet risen to the point where they are looking out for the interests of their nation as opposed to their particular self-interests. And that transition has to take place, and it has to take place now.’

'And if we don't see a breakthrough by August 17th, then we're going to have to consider what other tools we have to apply greater pressure on the parties,’ Obama said.

Obama’s 17 August deadline is the one set by IGAD-Plus for Kiir and Machar to respond to its latest draft peace agreement. So presumably the PSC summit that Nkoana-Mashabane referred to during the third week of August, would meet to consider the response of the belligerents to this proposal.

The 'Proposed Compromise Agreement on the Resolution of the Conflict in the Republic of South Sudan’, which has been drafted by IGAD-Plus, proposes a transition government of national unity be formed to make peace and to govern the country until new elections are held.

Interestingly, where Obasanjo’s commission recommends that neither Kiir nor Machar should form part of a transition government, IGAD recommends that Kiir should remain in his position and that there should be a first vice-president chosen by Machar's faction. This has perhaps been inserted to overcome the problem with Obasanjo’s proposal that gives them no incentive to stop fighting.

IGAD also proposes a hybrid court of South Sudan, to be presided over largely by non-South Sudanese African judges. The court will try the perpetrators of genocide, war crimes and crimes against humanity committed during the civil war.

It recommends that no one be granted immunity from this court – an intriguing provision, given the AU’s insistence on immunity for sitting presidents, in both the African Court and the ICC. But it would seem that the hybrid court would have powers only to punish those convicted by seizing their material assets, rather than, say, by sentencing them to imprisonment.

However, IGAD also proposes that no one indicted or convicted by the hybrid court may serve in the transition government and that anyone already serving in it would have to resign if indicted or convicted.

All of this appears to be a delicate – human rights activists will no doubt shout far too delicate – and rather convoluted way of trying to navigate and satisfy the conflicting demands of peace and justice; of avoiding impunity while also achieving a peaceful settlement.

Whether it will do the trick and kick start what Obama this week called the ‘endgame’ of South Sudan’s conflict may only emerge on 17 August.

Peter Fabricius, ISS Consultant.

This article first appeared in ISS Weekly, the weekly online newsletter of the Institute for Security Studies.