South Sudan: R-ARCISS Legal Validity Questioned Amid Violations

• The R-ARCISS faces significant challenges to its legal validity due to continuous, unaddressed violations of its provisions.
• Key figures like Dr. Riek Machar have been arbitrarily detained, and calls for inter-party dialogue have been ignored.
• Amendments to the R-ARCISS were made without following due process, bypassing RJMEC and exceeding Parliament's authority.
• The President has repeatedly removed officials unilaterally, disregarding the Agreement's procedures and collegiality spirit.
• A lack of genuine political will and unilateral decision-making by the SPLM under President Kiir have rendered the R-ARCISS largely unimplementable.

The cumulative effect of these violations and governance issues strongly suggests that the current framework of the R-ARCISS cannot be effectively implemented.

A significant debate has emerged regarding the legal validity and operational status of the Revitalized Agreement on the Resolution of the Conflict in the Republic of South Sudan (R-ARCISS). This scrutiny arises from persistent and unaddressed violations of its provisions. Dr. Lam Akol, who leads the National Democratic Movement (NDM), recently articulated a widely held concern, stating that the peace agreement is "inoperative and nonfunctional" because it fails to achieve its stated objectives. This assessment is supported by observable facts, particularly the alteration or complete removal of fundamental, entrenched provisions within the R-ARCISS.

Further complicating the situation is the arbitrary detention of Dr. Riek Machar, a principal figure in the R-ARCISS and the leader of the SPLM-IO, the second-largest party. While SPLM-IO leaders are currently engaged in legal proceedings concerning their situation, numerous regional and international entities have urged the government to release Dr. Machar and other detained SPLM-IO members. These calls for constructive inter-party dialogue have, however, been consistently disregarded by the government.

Legal experts contend that the "Doctrine of Basic Structure" applies to the R-ARCISS, implying that its entrenched provisions were designed to be immune from amendment unless specific due processes outlined within the Agreement itself were followed. This perspective underscores the gravity of any unilateral changes to the foundational document governing South Sudan's peace process.

Several actions have been identified as direct violations of the R-ARCISS's established legal framework. Notably, recent amendments to the R-ARCISS, primarily driven by the SPLM government, were enacted without adhering to the procedures stipulated in Article 8.4 of the R-ARCISS. These changes were made by bypassing the Reconstituted Joint Monitoring and Evaluation Commission (RJMEC), an oversight body whose authority was effectively usurped by Parliament. Under Article 8.4, Parliament's role is strictly limited to ratifying amendments that have already been effected by RJMEC. Consequently, any parliamentary action to amend the R-ARCISS without a preceding resolution from RJMEC constitutes a clear infringement of the Agreement's entrenched provisions and demonstrates a disregard for RJMEC R-ARCISS authority.

Beyond legislative amendments, the R-ARCISS also outlines clear procedures for the removal and replacement of government leaders across various levels, detailed in Articles 1.7.5, 1.8.3, 1.13, and 1.16.3. Despite these provisions, the President has frequently removed and replaced officials, including the SSOA Vice President, Ministers, National Members of Parliament, Governors, and state officials, without obtaining the necessary party resolutions as mandated by the Agreement. This pattern of unilateral decision-making has eroded the collegiality spirit envisioned by Article 1.19 of the Agreement, where the President has begun making decisions for all parties without their consultation, knowledge, or approval, directly contradicting the letter and spirit of the accord.

The operational integrity of the R-ARCISS has been further compromised by significant governance dysfunction and R-ARCISS implementation challenges. Vice President Mama Rebecca Nyandeng has publicly voiced serious concerns regarding the management of government affairs, revealing that she has been unable to secure a meeting with the President for two years, despite her crucial role heading the Service Cluster within the Presidency. This mirrors similar concerns previously raised by Vice President Taban Deng Gai regarding presidential inaccessibility. While supporters of the SPLM have dismissed these claims, they overlook the fact that both Vice Presidents are senior leaders within the SPLM itself.

These incidents highlight a broader issue: a profound lack of genuine political will, which has rendered the current structure of the R-ARCISS effectively unimplementable. The Agreement has increasingly disadvantaged other signatory parties, reducing them to mere spectators. The SPLM, under President Kiir, now unilaterally and arbitrarily dictates all matters concerning the R-ARCISS, leaving other participants with little to no active involvement. This unilateral approach directly contributes to the ongoing Revitalized Agreement South Sudan violations and casts a shadow over the prospects for stable South Sudan constitutional governance.

The cumulative effect of these violations and governance issues strongly suggests that the current framework of the R-ARCISS cannot be effectively implemented. This situation presents substantial legal and political risks for any entities engaging with or investing in South Sudan, necessitating rigorous due diligence on the stability of the existing governance framework and potential legal challenges to government actions. Despite these internal challenges, regional and international partners continue to emphasize that the R-ARCISS remains the only viable political and legal pathway for the nation. However, the persistent disregard for its foundational principles and procedural requirements by key actors within the government raises serious questions about the R-ARCISS legal validity South Sudan and its capacity to deliver lasting peace.

Lawyers advising on South Sudan should be aware of the significant legal challenges to the R-ARCISS's validity and implementation, as outlined by legal experts. This creates substantial legal and political risk for any engagements or investments in the country, necessitating careful due diligence on the stability of the current governance framework and potential legal challenges to government actions.

Source: Original reporting via legal expert opinion.