Preliminary evidence of gross human-rights abuses and mass graves in South Sudan by an African Union Commission of Inquiry has cast a shadow over talks to draw up a transitional government.

Diplomatic sources said that three special envoys of the Inter-Governmental Authority of Development (Igad) are currently engaged in shuttle diplomacy between Nairobi, Juba and Addis Ababa and that the mediation conference on the formation of the transitional government in South Sudan is set to resume within a fortnight.

In its interim report, the Commission of Inquiry on South Sudan led by former Nigerian president Olesegun Obasanjo said that it has found several mass graves as well as many individuals who allege having suffered or witnessed crimes, including sexual and gender-based violence.

As a result, the Commission urges all parties to cease violations of human-rights and humanitarian law or face consequences. However, the Commission is still in the process of collecting information and investigating various allegations of human-rights violations. It is yet to attach specific names to crimes against humanity and is expected to complete its work in three months.

If the allegations are proven, the principals — President Salva Kiir and his former deputy Riek Machar — could face criminal charges before the International Criminal Court.

“The devastation of the armed conflict is manifest in some of the areas visited by the Commission,” said the report.

Although the two principals have signed ceasefire agreements, the report said they have been abused and there is a need to maintain momentum towards securing a political settlement to ease the tension that has gripped the country.

The Commission said that while the first ceasefire agreement was largely ignored, the second has held tenuously, with some breaches routinely recorded by Igad’s Monitoring and Verification Mission.

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The Igad-facilitated peace negotiations, which looked to find a solution to the conflict, stalled due to a disagreement over the inclusion of seven former detainees and civil society that Dr Machar’s group insisted on being present at the negotiations.

The Obasanjo Commission also joins the many voices calling for the withdrawal of Ugandan troops from South Sudan, saying its presence is fuelling the war.

“In view of current efforts by the AU, UN and Igad, the Commission urges allied forces to begin withdrawing from South Sudan to allow deployment of the Igad force,” said the report.

“The Commission also urges an end to any form of military support to the belligerents that fuels and encourages hardening of positions and continuation of hostilities. This will encourage a speedy resolution of the crisis in order to commence the process of stabilising South Sudan.”

The Commission was set up by the African Union Peace and Security Council in June 2013 to investigate the human-rights violations and other abuses committed during the armed conflict in South Sudan and make recommendations on the best ways and means to ensure accountability, reconciliation and healing among all South Sudanese communities.

The mediation conference will include broader participation of other stakeholders like the civil society, faith-based groups and other political parties besides the government and Dr Machar’s faction of SPLM.

Igad was forced to suspend the talks on June 23, to allow for further consultations, after the rebel group led by Dr Machar boycotted the talks on the grounds that the civil society delegates were not representative of their interests.

The Igad rules of decision-making, say that a decision will only be binding if arrived at through consensus among the six participating groups or through what the mediators call “sufficient consensus.”

This means that the primary stakeholders — the South Sudan government and the SPLM/A in opposition — have to be in agreement, in addition to two other groups out of the six negotiating groups.

The six groups, who have nominated a total of 74 negotiators, are the government, the rebels, SPLM leaders (former detainees), other political parties, civil society and faith-based organisations. They are mandated to come up with a transitional government of national unity by August 10.

New conditions

The EastAfrican learnt that a day after June 10, when President Kiir and Dr Machar agreed to engage in serious negotiations to come up with a transitional government within 60 days, Dr Machar met Igad mediators and issued new conditions in which he maintained that the stakeholders should be divided into two — those supportive of the government and those who sympathise with the opposition.

He said that only the government and the opposition should negotiate while the remaining four groups act as observers or consultants.

However, this new position is against the May 9, agreement that recognised the six groups as key stakeholders because all of South Sudan’s society has been affected by the six-month conflict in one way or another.

Both the government and the opposition have each been given 15 accredited delegates but are only allowed to be represented by 11 delegates during the negotiations.

The remaining four groups have been given 11 slots each but can only present seven per group during the plenary discussions.

However, those close to the negotiations say that both President Kiir and Dr Machar still believe in a military solution because the conflict is yet to reach the “mutually hurting stalemate” in which any action taken by either side will hurt both of them.

Moreover, there is a strong push by both sides to win over the 11 former detainees, who have opted to remain neutral as they believe joining either side will only escalate the war.

The Commission adds that weaknesses of national institutions such as the executive, legislature, judiciary and the security sector, which have never been addressed, created an environment for the crisis that is unfolding in South Sudan.

These problems range from over concentration of power within certain institutions; weak or lack of checks and balances; militarisation of civilian institutions; lack of appropriate democratic civilian oversight of the security sector; leaders’ conflation of personal, ethnic and national interests; and inappropriate handling of political disputes.

These weaknesses, crystallised against the background of the particular history of the SPLA and the specific weaknesses of the Comprehensive Peace Agreement as a transitional process, gave rise to a variety of inter-connected problems.

With the negotiations set to resume, the burning question revolves around who will lead the transitional government and for how long in order to achieve national healing and reconciliation; conduct a census; review the South Sudan transitional constitution and lay the groundwork for the next elections.