FYI, you will find below some of the highlights and recommendations of the AU Commission of Inquiry on South Sudan (AUCISS) constituted in early 2014 to report on the atrocities committed by both the SPLM (governing party headed by President Salva Kiir, an ethnic Dinka) and by the followers of the SPLM In Opposition (SPLM-IO) headed by former Vice President Riek Machar, an ethnic Nuer. The violence was on a horrific scale marked by retaliatory massacres of civilians extending through 2014 and 2015 to the present. It had been triggered by the December 15, 2013 alleged coup attempt against Kiir in Juba mounted by forces loyal to Machar. The violence subsequently spread to the rest of the country, leaving 2 million IDPs and an impending famine in its wake.
The Commission of Inquiry headed by former Nigerian President Obasanjo included among its 5 members Pacifique Manirakiza, law professor at University of Ottawa. It completed its report and submitted it to the AU PSC in October 2014. However, the report was not published at the time because of concerns that the atrocities it documented could be explosive and scuttle the peace process which the AU was attempting to foster. Despite the ongoing efforts and ultimatums of various IGAD, AU, UN and African national mediators, no firm peace agreement aiming at restoring an inclusive government of national unity has yet been concluded. Repeated violations by both sides of resolutions and ceasefire agreements continue to occur, and President Kiir unilaterally decreed on October 2, 2015 without consultation the creation of 28 new states which effectively nullifies the power sharing arrangement of the most recent peace agreement, which references the current ten state Constitution..
The Executive Summary of the AUCISS Report of October 2014 was finally published on October 27, 2015. The following selected section headings and numbered paragraphs excerpted from the Executive Summary provide a flavour of the findings and recommendations of the full Report.
Findings Relating to System of Government
P. 29-30 The Commission found a disconnect between the legal framework on decentralization of the current Transitional Constitution and practice, with several aspects of decentralization not implemented or dysfunctional. States receive a share of 15% of national revenue while the national government retains 85%.
P. 32 With respect to the contentious debate on federalism, there is emerging political consensus that a new constitutional dispensation should be based on principles of federalism..
Recommendations Relating to Context of Reforms
P. 34-35..The AUCISS proposes to limit or eliminate interference by the national executive in the affairs of state executives and legislative assemblies. Also to give consideration to repeal provisions that empower the President to remove elected governors, to dismiss or suspend the legislatures, and to summon or prorogue the National Assembly.
Recommendations Relating to National and State Executive
P. 42-43 ..The future Constitution should establish a well balanced system of separation of powers with adequate checks and balances. The process of removal; of the Vice President should follow the process of appointment of the Vice President and should be subject to the same conditions,
Findings Relating to the Army (SPLA)
P. 44-46 The Transitional Constitution provides that the SPLA should be transformed into the South Sudan Armed Forces, non-partisan, national in character, patriotic, regular, professional, disciplined, productive, and subordinate to the civilian authority. Prior to the outbreak of hostilities on December 15, 2013 South Sudan had a large standing army estimated to be 200,000 and 45,000 veterans, as well as a reported 700 generals. The influence of the military appears to pervade nearly all spheres of life in South Sudan.
Recommendations Relating to the Army (SPLA)
P 50-60 Part of transformation process of the SPLA must include not only reducing numbers but also developing a more professional, specialized, affordable and efficient armed force.
– consideration be given to recruitment quotas
– delink military service and politics
– delink the army from the SPLM
– strengthen parliamentary oversight
– degrade the ability of political leaders to mobilize and arm militias
– demobilization to include alternative programs for young people such as vocational training.
Recommendations Relating to National Police Service (SSNPS)
P. 71-72 Greater resources, better pay, to narrow the gap with the SPLA, and basic human rights and gender training, as part of security sector reform.
Findings on Financial Management
P. 78 More equitable resource allocation esp. greater retention of petroleum revenues by oil producing states and diminution of rampant corruption and nepotism.
Findings Relating to National and State Legislatures
P.84 Separation of powers. Reduction of presidential powers to summon, prorogue and dismiss the National Legislature and to dismiss state legislatures. Legislature to control its own agenda and calendar.
Findings and Recommendations Relating to the Judiciary and Justice Delivery System
P. 96 Independence of Judiciary is undermined by method of appointment and militarization of public life.
P. 99 There is need to create a strong state able to monopolize the use of force and to enforce rule of law. Chiefs’ courts (traditional justice) should be linked with formal justice system.
P. 100. In view of the role of the judiciary in entrenching the rule of law, there is need for a strong independent judiciary with a national; reach.
Recommendations Relating to Political Parties
P. 114. It is imperative that the leadership in South Sudan commit fully to principles of accountability, transparency and responsive government. (* many recommendations are wildly unrealistic!)
II. Examination of Human Rights Violations and Other Abuses During the Conflict (IHL Violations)
P. 126 The Report documents cases of sexual and gender based violence committed by both parties against women. Also extreme cruelty exercised through mutilation and burning of bodies, draining human blood, forcing members of one ethnic group to drink the blood and eat burnt human flesh. Brutal killings and cruel mutilations of dead bodies.
P. 128 Places of religion and hospitals attacked, towns pillaged and destroyed, places of protection attacked, conscription of children, killing of soldiers hors combat.
P. 130 Extremely violent rape of women and girls,
P. 131 Acts of murder, rape, sexual violence, torture committed by both sides.
Findings on the Crime of Genocide
P. 134 No reasonable grounds to believe that the crime of genocide has occurred.
Recommendations related to Violations of Human Rights
P. 136 Establishment of an ad hoc African legal mechanism under the aegis of the AU which is Africa- led, Africa-owned, Africa-resourced, with the support of the international community to bring those who bear the greatest responsibility at the highest level to account. The Commission has identified possible alleged perpetrators that might bear the greatest responsibility. (*A footnote indicates that a highly confidential list will be submitted directly to the PSC).
P.138 Based on the central role played by the customary justice system, the Commission recommends an appropriate role for traditional justice, and traditional conflict resolution mechanisms — in relationship with formal accountability processes.
P. 139 The Commission proposes that traditional mechanisms combine retributive and restorative remedies, which include payment of compensation in modes acceptable to litigants, often cattle.
P.140 Also recommends creation of a national reparations fund with its program linked to traditional justice mechanisms. The broader program can also be linked to the work of a future Truth Commission.
Findings relating to Healing and Reconciliation
P. 141 Multiple conflicts and repeated violations of human rights have wrecked relations between and among communities. The policy of amnesty adopted by the government after the signing of the CPA (*in 2005) left the past unexamined, conflicts unresolved, and their impacts on victims and survivors of human rights violations unaddressed.
P. 142 The crisis has occasioned massive displacement — a reported 1.5 million (*now over 2 million)..
P. 143 Many South Sudanese take the view that reconciliation is dependent upon justice and thatb those who have committed atrocities should be prosecuted.
Recommendations related to Healing and Reconciliation
P. 144 The only sustainable solution to facilitate the return of IDPs and refugees depends upon a political settlement.
P, 146 – 148 It is necessary to establish a structured process to provide an opportunity for South Sudanese to discover the truth and attend to needs of victims. This is the only way to foster peace and reconciliation in South Sudan, to provide a forum for dialogue, and to construct a common narrative around which a new South Sudan can orient its future.
On Sequencing of Peace and Justice
P. 152 While complementary, the two notions are often in tension and the context is critical. In some contexts, reconciliation and justice can be undertaken at the same time; in others, sequencing offers an alternative approach that responds to the imperatives of justice and the need to reconcile and establish stability in post-conflict societies.
P. 153 The Commission recommends that consideration should be given to sequencing of peace and justice, i.e., establishing basic conditions including restoring stability and strengthening institutions which would facilitate reconciliation measures.
— End of AUCISS Executive Summary —
Aubrey Morantz – ASG Executive Member
