Joseph Geng Akech
South Sudanese lawyer, LLB (BU), LLM (UP), LLD candidate (UP)
Beyond the troubles much of the world is facing, COVID-19 is an add-on to the ‘plagues’ wrecking the world’s youngest nation, the Republic of South Sudan as it arrived at a time when the young nation is at a crossroad – rebuilding its fractured society troubled by ‘armed conflict, chronic communal violence, political instability, typified by absence of rule of law and constitutionalism.’ Evidently, COVID-19 is not only a threat to the country’s crippling public health system, but to the fragile peace and weak governance system alike. The tenuous peace deal, the Revitalised Agreement on the Resolution of Conflict in South Sudan (R-ACRSS), was already in doubt as critical aspects are yet to be implemented. Furthermore, the institutions of peacebuilding and constitutionalism were already lacking, weak or struggling when COVID-19 arrived.
Owing to this lack of capacity and weak governance, the government sought support and guidance of powerful United Nations and international non-governmental organisations to fight COVID-19. In so doing, it adopted extensive measures including closure of schools, businesses, imposition of curfew all over the country, limited work hours to half-day including reduction of workforce to essential staff, banned social gatherings as well as internal and domestic flights and inter-state domestic land and river transport. Shops with essential items were later allowed to open, curfew time extended and public transport permitted to half capacity. This relaxed policy, experts warned, coupled with demographic challenges of the South Sudanese society – making social distancing and contact tracing impractical – compounded to a surge in COVID-19 cases to a soaring 994, 10 deaths and 6 recoveries, with policy experts warning it could reach over 3,000 by mid-June. But what are the implications of these measures on the precarious peace and weak constitutionalism? Using secondary literature, this contribution asks and answers this question by setting out the background to the measures adopted (I) before analysing government’s measures to fight COVID-19 (II) and its implications on peacebuilding and constitutionalism (III). The contribution ends with concluding remarks on the way forward (IV).
Actors and actions: Power without oversight?
South Sudan’s dire humanitarian and protracted conflict meant that the country hosts large number of United Nations and international non-governmental organisations (INGOs) who have considerable influence on governance affairs and policymaking given their leading role in the provision of basic public services to the communities across South Sudan. When COVID-19 arrived, the government quickly reached out to these actors for support and guidance in deciding measures to be adopted in the fight against COVID-19 pandemic. In consultation with or advice from these actors, the government declared several measures to be overseen by the High-Level Taskforce (HLTF) chaired by the President and deputised by the First Vice President, Dr Riek Machar. After much criticism from the public that the pandemic is best managed by technocrats, the President dissolved the HLTF, removed himself and Riek and let one of the Vice Presidents, Hussein Abdalbaagi, who is in charge of service cluster, lead. The new team had more technocrats, but it is reportedly plagued by mismanagement of funds, infighting and soon, the newly appointed Vice president was taken ill by COVID-19.
It is important to note that measures taken by the government were not announced within the context of a state of emergency in terms of article 189(1) or 101(e) of the Transitional Constitution, 2011 (as amended). Acting under these articles would have required the President to engage the national legislature in approving such measures as the operative implication would be a state of emergency. Whatever the case, measures adopted implicate constitutionalism and enjoyment of fundamental rights and freedoms since they have resulted in restraint of rights and fundamental freedoms and significantly impacted livelihoods of people, especially the least fortunate. It can be said that the measures exposed two factors, that is (i) securitisation of COVID-19 measures and (ii) lack of oversight by national legislature, human rights institutions and courts, which impact peacebuilding and constitutionalism. In what follows, I discuss implications of these factors.
‘Securitising’ fight against COVID-19: Limiting rights and freedoms
The HLTF includes national security services, ministry of interior and the defence forces whose role is to enforce measures adopted by the taskforce including controlling borders and enforcing compliance of testing and contact tracing. Although many countries called upon their security forces to help in managing the pandemic, securitising the fight against COVID-19 could erode quest for building constitutionalism and peacebuilding in South Sudan. Instances of beating, arbitrary arrest and detention including extortion of money were some of the examples reported. It is important to note that the Constitution prohibits derogation of rights and freedoms and enjoins the courts and national human rights institution to protect and monitor abuse.
Lack of accountability and oversight
It is worth noting that the government did not declare a state of emergency even though coronavirus was declared by the World Health Organisation (WHO) as a global public health emergency. However, the legal regime on state of emergency in terms of articles 189(1) and 101(e) of the Transitional Constitution, 2011 (as amended) grants powers to the President to declare states of emergency only ‘upon occurrence of an imminent danger, whether it is war, invasion, blockade, natural disaster or epidemics…’ and to cause such to be ‘submitted to the national legislature within 15 days.’ Owing to the far-reaching impact of the measures on peacebuilding and constitutionalism, one can argue that the national legislature should have been called upon to debate and approve measures to fight COVID-19. The role of the national legislature cannot be downplayed even in emergency as trust building and allowing check and balance to operate even in times of pandemic is a critical democratic safety valve. The constitutional command that the national legislative be consulted whenever public emergency is triggered is to ensure that requisite oversight on measures impacting on fundamental rights and constitutionalism is performed. There are critical voices already warning that the rule by decrees is thwarting any efforts to building a democratic governance in South Sudan.
Intersection with COVID-19, constitutionalism and peacebuilding
Prior to COVID-19, South Sudan was immersed in deadly communal violence worsened by power vacuum in states as Riek and Kiir remain opposed to the division of power in states per R-ARCSS. This is in spite of the fact that the R-ARCSS attempted to silence the guns and led to the appointment of the executive members (vice presidents and ministers) of the revitalised government of national unity. News of reaching consensus are not in sight given the confirmation that two of the vice presidents Riek Machar, leader of main opposition, and Hussein Abdalbaggi one of the five vices including more than half of the ministers are infected.
With almost the entire government infected, constrained or in isolation, critical decisions are left to the undersecretaries and technocrats further dashing hopes that peace partners could break deadlock and form state government as soon as possible. Furthermore, the Principals are not meeting as Riek is taken ill by COVID-19 and the President is reportedly considering to self-isolate further away in Luri, a suburb about 10 kilo meters west of Juba. COVID-19 is therefore a real risk to the prospect of peace and constitutionalism.
This contribution has shown that COVID-19 could be the last nail in the failing peace deal and weak constitutionalism where decisions of public importance are taken without oversight by the national legislature, human rights institution or courts. To save peace and build on reforms contemplated under the R-ARCSS, the Principals must engage regularly to end deadlock on states to ensure no vacuum at local level. When state governments are appointed, they must adopt COVID-19 measures that are contextualised to their needs and realities and above all, with necessary oversight function from state legislature, in making decisions to fight COVID-19 in the states.