A widening rift between South Sudan President Salva Kiir and chief opposition leader Riek Machar has pushed Juba to the brink, raising tension across the country ahead of the November 12 deadline by which the two are supposed to have formed a Transitional Government of National Unity.
The standoff, if not resolved in less than two weeks, could push South Sudan into a deep constitutional crisis or trigger armed conflict in the restive nation.
The United Nations Security Council, US Congress and other Western powers have all insisted on the formation of TGoNU by the set deadline, to pave the way for reconciliation and enactment of a strong Constitution.
Dr Machar, however, wants formation of the transitional government (TGoNU) delayed by up to six months, appealing that Juba has not met the conditions set in the 2018 Revitalised Agreement on the Resolution of the Conflict in South Sudan (R-ARCSS), including addressing fears for his personal security.
He remains in exile in Khartoum.
Analysts say formation of a transitional government in the absence of Dr Machar could throw the country into a legal quagmire.
Unlike the earlier 2015 peace agreement that required the formation of a unity government with the Machar-led Sudanese Peoples’ Liberation Movement in Opposition (SPLM-IO) taking the position of deputy president, the 2018 agreement mentions him by name as the designated first vice-president, which means a government without him will not be legally constituted.
President Kiir’s advisors however argue that Dr Machar’s absence should not derail formation of the new unity government.
“Dr Machar has no grounds (for) staying out, he will lose popularity and sympathy of the South Sudanese People, but the issue of legitimacy is debatable and the process of forming a government will most likely go on,” said President Kiir’s legal adviser, Lawrence Korbandi, in an interview.
The 2018 peace agreement, which aims at ending the five-year-old conflict that has killed nearly 400,000 people and displaced more than 4 million, with about 1.8 million of those internally displaced, was signed by five parties in the Ethiopian capital Addis Ababa under the mediation of East Africa’s Intergovernmental Authority on Development (Igad).
In the envisaged unity government, whose term shall last thirty-six months, President Kiir is to continue ruling as the President of the Republic of South Sudan, and Dr Machar shall assume the position of the First Vice President.
Four other vice presidents are to be nominated by the incumbent TGoNU, the South Sudan Opposition Alliance (SSOA) and Former Detainees.
John Pen, who represented the civil society in the Addis Ababa and Khartoum peace negotiations, says the 2015 agreement provided a legal loophole for President Kiir to replace Dr Machar with Taban Deng Gai.
He says the mention of Dr Machar by name in the R-ARCSS has tied his hands, while his battle-hardened soldiers remain a strong force to reckon with.
“There can be no peace without this huge movement laying down their arms,” said Mr Pen.
The opposition has also raised the question of President Kiir’s legitimacy, given that his term expired in 2015 when the country was supposed to have held elections before war broke out in 2013, resulting in a political crisis.
Mabior Garang de Mabior, the SPLM-IO chairman of the National Committee for Information, holds that President Kiir has been ruling the country through transitions ever since independence in 2011, and is yet to get mandate from the people of South Sudan.
“The legitimacy of President Kiir expired in May 2013 when he refused to hold the scheduled party convention and instead sacked the entire cabinet,” says Mr Mabior.
But Mr Korbandi says that while it is true that the elections were supposed to be held in 2015, the matter has been overtaken by events and ‘only presents good materials for political argument, especially for the opposition.’
The SPLM-IO is demanding that security arrangements, which involves cantonment, screening, training and reunification of armed groups, the number of states the country should have and the entrenchment of the September 2018 agreement, must be addressed before Dr Machar joins the government.
Yet the security arrangements continue to suffer setbacks after SPLM-IO soldiers abandoned five cantonment sites citing inadequate supply of food and medicines.
Desta Abiche Ageno, the chairperson of the ceasefire monitoring body in South Sudan, says that many of the opposition registered forces have been leaving designated sites of MirMir, Kendila, Sue, Ngo Alimah and Pantiit.
TAnalysts say that forming a government without addressing the security arrangements is likely to result in a repeat of what happened in July 2016, when fighting broke out at the presidential palace in Juba.
Dr Machar was forced to flee to the neighbouring Democratic Republic of Congo.
Jervasio Okot, a South Sudan Political Analyst living in Kenya, sees President Kiir and Dr Machar as the main principals in the peace agreement, terming other opposition groups as ‘mere numbers’ that support either side.
“The challenge in South Sudan is that a leader without soldiers is not taken seriously and that is why with the absence of one principal and the collapse of the agreement the country might have to start from scratch,” says Mr Okot.
Dr Machar has called for extension of the pre-transitional period for another six months, a suggestion that was seconded by South Sudan prominent politician Dr Lam Akol, the secretary general of the SSOA, a grouping of 10 opposition parties.
According to UN reports, nearly the entire South Sudan is in need of humanitarian support.
President Kiir appears set to form a government with the like-minded opposition, without Dr Machar. At a police conference in Juba on October 30, he maintained that the implementation of the agreement was ‘encouraging.’
Legality and legitimacy
David de Dau, a senior member of the leadership Council of South Sudan National Movement for Change, says that Dr Machar and Dr Akol’s refusal to join the formation of the government ‘will force the President to choose between the people of South Sudan and the two doctors’ interests.’
Kosti Manibe, a member of the former detainees, cautioned that if Dr Machar is kept out through machinations of President Kiir then issues of legality and legitimacy will arise.
“Certainly the next Kiir government will not have legitimacy, at least in the view of most informed South Sudanese”.