Rome Declaration of Principles: What value is it adding to R-ARCSS?
What is a Declaration of Principles (DoP)? In this context, the DoP is a set of principles that guide the negotiations of the two or more parties. Issues to be discussed must fall within the framework of the DoP and none outside it can be tabled at a later date, except, of course, under the very rare circumstance when the signatories to the DoP agree to so include. Therefore, it is safe to assume that the root causes meant by SSOMA must have been included in this DoP. What is the scope of applicability of R-ARCSS? The R-ARCSS, or indeed any other agreement agreed upon to end the conflict in South Sudan, is not a stand-alone legal and constitutional document. It is a political agreement that complements the Transitional Constitution of the Republic of South Sudan 2011 (as amended) (TCRSS 2011). That is why it must be incorporated as a whole into the TCRSS 2011. In that incorporation, the Parties have agreed that the provisions of the TRCSS 2011 that are consistent with R-ARCSS remain intact and those that are inconsistent with it are replaced by the provisions of R-ARCSS to the extent of removing the inconsistency (Article 8.2 of R-ARCSS). With this understanding in mind, one cites in what follows both documents in support of a point of view. Analysis of the DoP We now turn to consider the ten points of the DoP, one by one. The numbers as came in the DoP are maintained for ease of reference. 1- Establishment of a democratic, and federal system of governance anchored on the principles of separation of power and wealth sharing between various levels of governance in the country. Comments: 1.1- The establishment of a democratic and federal system of governance is reaffirmed in Article 1.4.11 of R-ARCSS (quoted below). The expression “anchored on……in the country” is superfluous as these are the characteristics of any federal system.
1.2- On federalism, the R-ARCSS goes beyond this statement. Specifically:
(a)- Paragraph 5 of the Preamble reads: “Cognizant that the federal system of government is a popular demand of the people of the Republic of South Sudan and the need for the RTGoNU to reflect this demand by way of devolution of more powers and resources to lower levels of government”
(b)- Article 1.4 is titled the “General provisions applicable during the Pre-Transitional Period”. This means that its provisions are applicable during the Pre-Transitional Period. In this regards the following articles are relevant:
B1- Article 188.8.131.52 makes it clear that “the devolution of more powers and resources to lower levels of government”, is to be effected during the Pre-Transitional Period.
B2- Article 1.4.11 stipulates that: “The Parties reaffirm their commitment to the ARCSS that a federal and democratic system of governance that reflects the character of the Republic of South Sudan and ensures unity in diversity be enacted during the permanent constitution-making process”.
B3- Article 4.11.4 states: “In line with the agreement on the devolution of more powers and resources to the States and Counties, wealth sharing and revenue allocation shall be worked out by the RTGoNU within three (3) months of the commencement of the Transitional Period.”
B4- Article 4.11.5 provides that: “The proportion of the natural resource wealth of South Sudan shared with the States and counties shall be increased and that the final terms of the increment and formulae to be applied shall be determined in the permanent constitution”.
B5- Articles 4.11.6 ensures compliance with the allocation of resources as follows: “The RTGoNU shall not withhold an allocation due to a State or Local Government in South Sudan. Any level of Government may initiate proceedings in the courts of law should any other organ or level withhold its duly authorized funds”.
All these Articles are about the division of power and resources among the various levels of government during the Pre-Transitional and Transitional Periods within a federal system. In fact, Article 1.4.11 commits the Parties a priori to adopt federalism at the Constitution-making process. 2- The national identity shall be based on respecting ethnic and regional diversity and communal rights including the rights of communities to preserve their history develop their language, promote their culture and expression of identities. Comment This provision is copied near-verbatim from Article 6.2.5 of R-ARCSS which stipulates: ”Respecting ethnic and regional diversity and communal rights, including the right of communities to preserve their history, develop their language, promote their culture and expression of their identities.” 3- Drafting a permanent Constitution, starting with the process of ………… Comments 3.1- 3(a) and 3(b) are provided in Article 6.6 of R-ARCSS
3.2- 3(c): Article 6.11 provides for a Constituent Assembly to debate and adopt the permanent constitution from the 27th month of the Transition. There are pros and cons in adopting a permanent Constitution by a Constituent Assembly or by referendum, space will not allow delving into that here. Suffice it to mention that whereas a referendum guarantees a popular endorsement of the constitution, the nature of the exercise being a ‘no' of ‘yes' choice doesn't ensure popular scrutiny of the specific provisions of the constitution. That is why most countries take the Constituent Assembly route. 4- Establishment of a (sic) high level, competent and effective oversight mechanism… Comment This is a verbatim copy of Article 4.1.4 of R-ARCSS. 5- Civil and public reforms shall be designed …... Comments This provision is a restatement of Articles 138(8) of the TCRSS 2011 read together with the relevant provision of Article 139(1)(i) on affirmative action. Also, Article 1.2.10 or R-ARCSS states that RTGoNU shall: “Restructure, rehabilitate, and ensure radical reform of the civil service”. What is stated here are details of such radical reform. 7- The land in South Sudan belongs and owned by the indigenous communities and its use shall be governed by law. Comment This provision is more specific than Article 169 of the TCRSS 2011 which is ambiguous and subject to different interpretations. Therefore, it is a valid point reaffirming what was agreed in the Comprehensive Peace Agreement (CPA) 2005 on land.
2020-10-15 | News | English | SudanTribune