South Sudan’s New Peace Agreement and Prospects for Peace and Human Development

By John Mukum Mbaku Attorney & Counselor at Law, Nonresident Senior Fellow at the Brookings Institution, and Brady Presidential Distinguished Professor of Economics, Weber State University (USA)

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Introduction

On July 9, 2011, Africans from all walks of life joined the people of South Sudan to celebrate the birth of a new nation. For the diverse ethnocultural groups that make up this new country, independence marked the culmination of an extremely long and bloody struggle for them to exercise their right of self-determination. Nevertheless, as the new country’s diverse groups took time out to celebrate their freedom, as well as honor those who had fought to secure that freedom, they were reminded by many observers that building a nation, maintaining peaceful coexistence, and enhancing sustainable development, requires a lot of hard work and sacrifice, effective political leadership, and strong democratic institutions.

Although South Sudan started its life as an independent country with significant endowments of natural resources (including oil and gas reserves, and significant amounts of arable land) and an extremely young and vibrant population, all of which provided its citizens and government with a solid foundation for the creation of the wealth that was needed to confront poverty and improve the people’s living standards, the same country has faced what appears to be insurmountable problems, many of which have become major constraints to both political and economic development. The most important of these development obstacles is the inability of the government to effectively manage ethnocultural diversity and provide the necessary institutional structure for the peaceful coexistence of the country’s various subcultures.

Back in 2011, scholars at Washington, D.C.’s Brookings Institution cautioned South Sudan “not to be complacent in their nation-building efforts.” They argued that while independence offered South Sudanese many opportunities for wealth creation and economic growth, as well as, nation-building and political development, it also presented the country’s diverse ethnocultural groups and the government with many challenges. In order to understand and appreciate the failure of human development in South Sudan, it is necessary to take a look, if only briefly, at some of the challenges that the country has faced since independence in 2011.

South Sudan: a country plagued with many development challenges

As South Sudan prepared for independence, scholars at the Africa Growth Initiative at the Brookings Institution predicted that the most important challenge that the new country would face would be how to create a “united nation.” They went on to argue that “[h]ow South Sudan deals with harmonizing the claims of the various stakeholders and ethnic groups is the single most important determinant of whether it succeeds or fails as a nation.” The hope was that the country’s post-independence political leaders would provide the leadership needed to bring the country’s various subcultures together and engage in the type of robust dialogue that would result in the creation of institutional arrangements that enhance peaceful coexistence, and promote entrepreneurship and the creation of the wealth that the people can use to fight poverty and improve their quality of life. Unfortunately, as the evidence has since shown, the type of transformational leadership that could have saved the country from eventually descending into ethnic-induced civil war has been missing in post-independence South Sudan. Instead, what has emerged in the country since it gained independence in 2011 has been opportunistic and self-dealing leadership, which has failed to secure peace and security for the people and has, instead, plunged the country into civil war and forced the people to remain trapped in a perpetual state of political dysfunction and underdevelopment.

South Sudan has a lot of development challenges—a largely illiterate population; one of the highest infant mortality rates in the world; relatively poor or nonexistent access to prenatal care for pregnant women; high maternal mortality rates; lack of access to basic services, such as health care, education, clean water, police protection, and other services that are supposed to be provided by the government; and extremely high levels of poverty. In addition, there is a total lack of basic infrastructure and other facilities (e.g., hospitals, educational facilities, electric-generating plants, and sewage disposal plants) that comprise an important part of a country’s productive capacity. Nevertheless, the lack of these growth-enhancing structures can be attributed to the absence of transformative political leadership and the failure of South Sudan to build a consensual state, one that can significantly enhance the ability of all of the country’s subcultures to coexist peacefully and participate fully and effectively in the development of the country.

Without peace, there cannot be political and economic development

In a country, such as South Sudan, where the government struggles on a daily basis to survive, such a government is not likely to be concerned with public policies that advance economic and political development, including the recognition and protection of human rights. Instead, such a government would most likely devote public resources to supporting those institutions (e.g., the military and the police) that provide the incumbent government with the necessary coercive force to maintain its hold on power. Within such a system, scarce resources that ought to be invested in the provision of essential public services (e.g., human capital development, basic health care, clean drinking water, housing for the poor, and nutrition services for children from vulnerable groups) are usually devoted to purchasing regime security (for example, through either providing direct payments or other benefits to competitive elites and groups that have developed significant violence potential and hence, are in a position to threaten the survival of the regime). Institutions, such as the military and other agents of coercion, are most likely to be favored in public revenue allocations, as the incumbent government fights for its survival. In the process, virtually no government effort is devoted to the transformation and/or support of the productive sector—that is, the one that creates wealth. As a consequence, both economic and political development would be stunted.

War and other forms of ethnic-induced violence are a major cause of poverty in many countries in Africa, including South Sudan. A country cannot achieve any reasonable level of human development unless it is able to create wealth. The most effective way to create the wealth that is needed for poverty alleviation and the improvement of the people’s quality of life is for the government to provide an institutional environment and a regulatory framework that encourage entrepreneurial activities and help in the development and sustaining of a viable and robust private sector. Without the latter, it is not likely that a country will be able to create wealth and promote inclusive economic growth. A government cannot provide such an institutional environment, that is, one that enhances entrepreneurial activities and the creation of wealth, if it is preoccupied with the challenges posed by a civil war and other political violence.

In order for South Sudan to establish an economy that enhances, encourages and promotes the creation of wealth, it is absolutely necessary that it have institutions that guarantee the security of property rights, provide opportunities for free, voluntary, and mutually beneficial exchange, ensure both foreign and domestic investors that freely negotiated contracts will be enforced, and that the property and person of the individual will be granted protection by the country’s police and judicial institutions. Those who emerged to govern South Sudan when it gained independence in 2011 were supposed to provide the leadership to create and sustain such development-enhancing institutions. Unfortunately, that never happened and this explains, if only partially, why the country remains stuck in a state of poverty and underdevelopment.

War, as South Sudan has already discovered, can kill a lot of people, many of them in their most productive years. In a report produced by the London School of Hygiene & Tropical Medicine and released in September 2018, there have been nearly “400,000 excess deaths” in South Sudan since the civil war began in 2013. In addition, by early 2018, South Sudan’s civil war had displaced about two million people within the country and forced a further two and one half million people to flee into refugee camps in neighboring countries. Those killed, as well as those forced to flee their homes into involuntary exile, include critical human resources that could have contributed significantly to economic growth in the country, especially in the production of foodstuffs and other agricultural commodities.

Republic of Sudan now seen as part of the solution to peace in South Sudan

In December 2015, a peace agreement was signed between South Sudan’s two feuding parties, leading to the formation of a unity government, with Salva Kiir (of the Sudan People’s Liberation Movement-Juba (SPLM-Juba) as president and Riek Machar (of the Sudan People’s Liberation Movement-in-Opposition (SPLM-IO) as vice-president. Nevertheless, that peace agreement soon fell apart and by July 2016, fighting had broken out between Machar’s loyalists and those of his political rival, Kiir. Shortly afterwards, Machar fled into exile, effectively abandoning his position as the country’s vice president. The violence continued as the security situation in the country worsened.

Then, on September 12, 2018, the two warring factions signed another peace agreement (“Revitalized Agreement on the Resolution of the Conflict in the Republic of South Sudan (“R-ARCSS”)), which some analysts and observers argue is different from several previous ones, all of which have failed. As stated by Professor Mahmood Mamdani, Director of the Institute of Social Research at Makerere University (Uganda) and an expert on political economy in the region, the latest agreement is not one between Kiir (a Dinka) and Machar (a Nuer) but one between the presidents of two countries with significant interests in a peaceful and prosperous South Sudan—Omar al-Bashir of Sudan and Yoweri Museveni of Uganda. Both al-Bashir and Museveni, who were quite involved in the negotiations leading to the signing of the agreement, have offered themselves as guarantors of what many observers believe could be the foundation for sustainable peace in South Sudan.

Previous peace agreements had assumed that Sudan to the north was a major threat to peace and security in South Sudan—this was based on the belief that groups and/or subcultures within South Sudan that felt marginalized politically and economically could turn to Khartoum for assistance and through that process secure the wherewithal to destabilize the government in Juba. Hence, as argued by Professor Mamdani, “[t]o close that loophole,” it was necessary to bring Khartoum into the peace negotiations and make Sudan part of the solution. Thus, the September 12, 2018 peace agreement differs significantly from previous efforts in that Sudan is now considered a critical part of the solution to peace and security in South Sudan.

New peace agreement to introduce the dreaded “sons of the soil” citizenship scheme

Unfortunately, argues Professor Mamdani, the R-ARCSS will lead to the “disenfranchisement of a large section of South Sudan’s population.”  The new agreement is designed to divide South Sudan into ethnic homelands or enclaves to be occupied by its various subcultures—the Dinka, Nuer, Zande, and others. Hence, the R-ARCSS does not seek to establish a country called South Sudan, with a single supranational citizenship, which is defined, not by ethnicity, religion or other ascriptive traits, but by fidelity to a group of values or ideals—for example, democracy, rule of law, equality before the law, and equal opportunity for citizens, regardless of their ethnic affiliation, to engage in self-actualizing activities in any part or region of the country that they desire or choose.

As it presently stands, the R-ARCSS is expected to divide South Sudan’s existing land mass into geographic zones or homelands (most likely ethnic-based political jurisdictions) for each of the country’s subcultures. However, in a geographic area that currently houses multiple ethnocultural groups, the area will be designated as belonging to one single group, effectively introducing the “sons of the soil” phenomenon that has proved disastrous, economically, socially, and politically for other African countries, including Nigeria and Cameroon. Under the sons of the soil approach to citizenship, an ethnic group claims a specific geographic area of the country as its ancestral home—members of that group refer to themselves as “native sons” or “sons of the soil” and engage in various activities to prevent people from other parts of the country (who are referred to as “strangers”, “outsiders”, or “settlers”) from settling amongst the native sons and participating in both economic and political markets. In multiethnic areas or regions, the so-called “native” majority will exercise monopoly power over all political, economic, and social activities, effectively disenfranchising all minority subcultures—the latter will effectively lose their “customary” or “traditional” right to the use of the land for agriculture and other activities, as well as their right to political participation, particularly at the local level. This is the type of citizenship structure that the new agreement is expected to provide for South Sudan.

The R-ARCSS sets out what it refers to as “Parameters of Permanent Constitution.” The key to peace and security in South Sudan and hence, economic growth and development, lies not just in a well-crafted constitution, but in the process through which such a constitution is designed and adopted. Hence, this agreement, which arises essentially out of a bargain between a selected group of elites, should not determine or dictate the principles on which the permanent constitution will be based. Instead, the Transitional Government of National Unity of the Republic of South Sudan (TGoNU), which was constituted by the present agreement, should, first secure the peace and then, conduct nation-wide, free, fair, and credible elections, which will choose a new Constitutional Assembly, separate from the Transitional National Legislative Assembly (TNLA). The elected Constitutional or Constituent Assembly (CA) would then engage the people of South Sudan in a robust process to develop the Constitutional Principles that will (1) form the foundation for the permanent constitution, as well as guide the latter’s designers; and (2) constrain the Constitutional Assembly in its constitution drafting work. Through these constitutional principles, all of South Sudan’s subcultures can make certain that the permanent constitution reflects the values that are important and dear to them. In addition, the peoples of South Sudan, through these principles, can make certain that their permanent constitution reflects provisions of international human rights instruments and other principles that form the foundation of a true democratic State.

Article 6.11 of the R-ARCSS states that “[t]he Parties agree that the Transitional National Legislature shall be transformed into a Constituent Assembly.” Given the fact that the TNLA, like other institutions created by the R-ARCSS, arises out of a bargain between various elites, it should not be the political entity charged with producing the country’s permanent constitution. The legitimacy of a constitution and the government formed under it is determined, to a great extent, by the way in which the CA came into being. If members of the CA are chosen through free, fair, and credible nation-wide elections, the outcome of its work—the constitution—is likely to be considered a legitimate instrument of governance. Nevertheless, if the CA’s members are handpicked by the executive or, as is the case with the TNLA, by a group of elites, the constitution is not likely to be clothed with the kind of legitimacy that can promote widespread acceptance and compliance. Legitimacy of the constitution and of the constitution-making process are very important to countries, such as South Sudan, that are characterized by significant levels of ethnocultural diversity. Relegating the constitution-making process to a group hand-picked by the country’s elites is a miscalculation that can keep the country trapped in political dysfunction for many years to come. The people must be involved and they must be allowed to lead the constitutional design and institution building processes through the selection of the CA, as well as the constitutional principles that will under-gird the final and permanent constitution.

Meanwhile, the agreement has given the two guarantors, Sudan and Uganda, a special and strategic role in determining the political and economic future of South Sudan. While Uganda and its military and economic resources will support the Kiir/Dinka faction, Sudan stands ready to provide all necessary assistance to the Machar/Nuer group. What, then, becomes of the peoples of South Sudan and their yearning for self-determination? By this unusual agreement, are the leaders of South Sudan telling the world that the country is simply incapable of governing itself and hence, must place its sovereignty into the hands of a pair of caretakers? What happens to the independence that so many people secured with their lives? As argued by some experts, this agreement will divide South Sudan into “a tribally fragmented society” with decisions affecting the country and its peoples to be dictated from Khartoum and Kampala. Whose interests and values will be maximized under such a political arrangement—those of Sudan and Uganda or those of the peoples of South Sudan? Given the fact that there is not likely to emerge from this arrangement any institution capable of representing the interests of a united South Sudan polity, it is doubtful that national economic and political development, including especially poverty alleviation, will be on the agenda of any of the entities occupying political space in the fractured country.

The absence, from the September 12, 2018 peace agreement, of a process that provides the wherewithal for the construction of an all-inclusive or pan-South-Sudan dialogue, rather than one based on or centered around ethnic groups, is likely to force the country to remain trapped in political chaos and dysfunction, economic underdevelopment, and the failure to achieve peaceful coexistence.

Mobility of human capital is a key to economic and human development

Human capital is very important to wealth creation and economic growth—it can impact the creation of wealth in a country through its impact on either labor productivity or on overall factor productivity. Nevertheless, our interest is not on how human capital affects wealth creation and economic growth in South Sudan. Our interest is on citizenship and how the way it is structured can have a significant impact on peaceful coexistence, poverty alleviation, and human development. What impact, for example, will the provision of ethnic-based sub-national political jurisdictions in South Sudan have on citizenship and hence, on the ability of individuals to participate fully and effectively in national development?

In South Sudan, as in other countries, once a unit of labor has trained and obtained necessary skills, it may become necessary for it to exit the location where it was trained in order to productively use the skills that it has acquired. As stated by economists, the skilled unit of labor may have to move to where it can earn its opportunity cost. For effective utilization of South Sudan’s human resources, it is critical that these resources be allowed to move freely throughout the country. Thus, free internal migration is an important part of the effort to fully utilize human resources for development in South Sudan. But, under the new arrangement, will a Dinka engineer, for example, be able to move freely to “Nuer country” and exercise his or her right, as a citizen of South Sudan, to settle and practice his profession in that part of the country even though he or she is not considered a “native son”? What about a Nuer physician who wants to take advantage of job opportunities for medical experts in Dinka country, will he or she be welcomed in Dinka tribal lands?

Migration, even within the country, can involve significant economic and non-economic costs. Although the high costs of migration in a country such as South Sudan are likely to be cited as the reasons for the inability of many labor resources to migrate freely, there are other more important obstacles to internal migration, especially in view of the new peace agreement, which has, perhaps, unwittingly, introduced the concept of “sons of the soil” into the political economy of the country. The most important of these is the issue of citizenship—what it “involves in terms of rights, duties, immunities, privileges and forbearances for its bearers.” The new peace agreement will allow various subcultures within South Sudan to claim certain geographic areas as their ancestral lands and hence, have monopoly control of these areas. In countries, such as Nigeria and Cameroon, ethnic groups call themselves “sons of the soil” or “native sons” and make a lot of efforts to prevent people from other parts of the country from settling amongst them and participating in economic and political markets. There is no reason to believe that if the new peace agreement sets up such a system in South Sudan, the various subcultures, which are provided control over specific geographic areas of the country, will not behave similarly and discriminate against other South Sudan citizens that they consider “strangers” or “outsiders” in the lands that these “indigenous” groups consider as their ancestral lands.

What is the way forward for South Sudan?

First, the citizens of South Sudan should understand that, contrary to popular thinking, the September 12, 2018 peace accord does not resolve the country’s political stalemate. What it does, however, is to create an environment within which all the feuding parties can, if their leaders are able to muster the political will to do so, secure the peace and begin the process of reconstructing the State through a democratic (i.e., people-driven, participatory, bottom-up, and inclusive) process. In doing so, it is very important that ethnicity is not be used as the basis to create sub-national political units (e.g., states, provinces, or counties). For, if sub-national units are ethnic-based, the outcome will invariably be “mini-ethnic nations” and the process would have failed to build a consensus, pan-South Sudan State. Ethnics in each ethnic nation will most likely pay allegiance to their group and not to a South Sudan State and in the process, will discriminate against fellow South Sudan citizens who are not considered “indigenes” or “sons of the soil” of each ethnic nation. In addition, in those ethnic nations that consist of multiple subcultures, there is likely to be a tyranny of the majority, with minorities being systematically deprived of their rights to participate in the political and economic life of their communities.

Second, South Sudanese should see the constitution as a mechanism, which they can use to codify the ideals and values that are important to them and which will help them live together peacefully as a nation—some of these ideals include, fairness, justice, respect for the rights of others, recognition and protection of human rights, and a belief that all South Sudanese, regardless of their ethnic affiliation or political/economic standing, can contribute positively to economic and political development in the country. Thus, constitution making should involve a careful and purposeful analysis of the multifarious development and governance problems that confront the country—from the guarantee of the peaceful coexistence of all of the country’s subcultures to the creation of the wealth that can be used to deal with poverty. In other words, the constitution and its design and adoption must be recognized as a conscious and deliberate effort to deal fully and effectively with the various threats to South Sudan’s existence as an undivided nation.

Third, the peoples of South Sudan must understand the fact that because they all hail from various ethnocultural groups, the tie that binds them together is neither ethnicity nor a common linguistic or cultural heritage. Instead, what binds them together are the ideas and ideals that they voluntarily agree to and elaborate in the constitution. Some of these ideals include separation of powers, with checks and balances, including an independent judiciary, the supremacy of the law, openness and transparency in government communication, voluntary acceptance and respect of the law, a free press, and a robust and politically active civil society. While each ethnocultural group will be allowed to maintain its culture and customs, it must do so without infringing on the ability of others to do likewise. In addition, loyalty to the ethnic group must not be allowed to trump or undermine that to the nation.

Fourth, there must be free internal migration. In every modern State, an important characteristic of citizenship is its portability—the latter involves the ability of the citizen to exit one political jurisdiction and enter another, easily establish residency there and be able to participate fully and effectively in political and economic activities. Within the new South Sudan, then, a Dinka entrepreneur should be able to exit “Dinka country” and resettle in “Nuer country,” gain residency relatively easily and proceed to exercise his or her South Sudan citizenship in his new political jurisdiction. Unless South Sudan citizenship is fully portable, economic growth and development will be severely limited because highly skilled and trained individuals will be unable to freely migrate to where their skills are needed the most. In fact, some communities may find it very difficult to attract teachers, health workers and other human resources that are critical to economic development from outside their own jurisdictions—trained teachers and nurses might be unwilling to migrate out of their own districts for fear that they may be treated poorly or denied access to jobs in the communities they seek to go to by indigenes or sons of the soil.

Fifth, South Sudan must make sure that any constitutional order that it establishes must not be one that grants privileges to an individual merely because that person was born at a particular place or belongs to a particular ethnic group. All South Sudanese citizens, regardless of their ethnic affiliation, as well as where they were born, should have the same citizenship rights and should be able to migrate freely and settle in any part of the country that they choose—such an approach will significantly enhance the utilization of human resources for economic growth and development. As argued by Nigerian political philosopher, Olufemi Taiwo, such an approach to citizenship will “make it possible for [citizens] to go and seek fame and fortune anywhere in the country without thinking that they are ‘aliens’ who have to go back ‘home’ at some unspecified future date.” Skilled workers and entrepreneurs will be able to migrate to those parts of the country that can effectively utilize their skills and talents and in the process, promote national development. In addition, political jurisdictions throughout the country will be able to design and implement policies that attract skilled workers and entrepreneurs and provide the institutional support for them to thrive, effectively contributing to the development of their regions.

The “sons of the soil” approach will further politicize ethnicity in South Sudan, endanger nation building, and force the country to remain trapped in violent ethnic conflict and continued political dysfunction. It is not likely that a single institution, one that does not owe its allegiance to some ethnocultural group, but to the nation as a whole, will emerge from the present agreement to represent South Sudan and its diverse groups.

Sixth, the TGoNU should conduct free, credible and fair nation-wide elections to pick a Constitutional Assembly (CA). The CA should then engage the peoples of South Sudan in dialogue and negotiation to select the constitutional principles, which will undergird the constitution and constrain the drafters. Once the constitutional principles are agreed upon, they can then be enshrined in an interim constitution and the CA can then proceed with drafting the country’s permanent constitution.

Finally, for South Sudan to extricate itself from its present political quagmire, it must engage in process-driven constitution making to produce a constitution that reflects the values of its relevant stakeholders. In doing so, all South Sudanese, not just the parties that have been battling each other since 2013 (that is, the Kiir- and Machar-led factions) must engage in robust dialogue about constitutional design, the constitution, constitutionalism, and constitutional government. Such a discussion should emphasize fundamental rights—how to define, guarantee, and protect them; the structure of government—this discussion should include issues such as election laws and procedures, separation of powers, checks and balances, and federalism; citizenship and its portability; and procedures for amending the constitution. While it is critical that South Sudan provide itself with a Bill of Rights, it is important to note that doing so is a necessary but not sufficient condition for the effective protection of these rights. Sufficiency requires that there be established a governing process that is characterized by separation of powers, with effective checks and balances, including especially an independent judiciary, a free press, and a robust civil society that is capable of checking on the exercise of government power.