AN EXAMINATION OF THE ROLE OF CONFLICT RESOLUTION MECHANISMS IN ARMED CONFLICT SITUATIONS: A CASE STUDY OF

BY

MOSES MAKER MAGOK

LLB/16625/113/D F

A DISSERTATION SUBMITTED TO THE SCHOOL OF LAW IN PARTIAL

FULFILLMENT OF THE REQUIREMENTS FOR THE AW ARD OF

THE DEGREE OF BACHELOR OF LAWS OF KAMP ALA

INTERNATIONAL UNIVERSITY

JANUARY, 2017 DECLARATION "I MOSES MAKER MAGOK declare that the work presented in this dissertation is original. It has never been presented to any other University or Institution. It is hereby presented in partial fulfillment of the requirements for the award of the Bachelor Degree in Law of Kampala International University".

Signature: --~ ------Date: _{?_ _j_~J~J:j- APPROVAL BY THE SUPERVISOR

"I certify that I have supervised and read this study and that in my opinion, it conforms to acceptable standards of scholarly presentation and is fully in scope and quality as a di ssertation in partial fulfillment for the award of Degree of Bachelor of Law of Kampala International University".

Name of Supervisor: Mr.Tajudeen Sanni

Signature: -- ~ ------Date: ------b/J ------')_------1---:::r------

(

ii DEDICATION

I dedicate this book to my dear and lovely wife Deborah Yar Majok and the entire family of Dhor Athian Liai and to my parents both Dad and Mum namely: Magok Majok Dhor and lovely Mum Mary Nyitur Y omdit for their adequate supports and prayers they rendered to me during my studies that gave me success leading to award of Bachelor Degree of Laws of Kampala International University.

iii ACKNOWLEDGEMENTS There are many people who deserve special thanks for helping me in getting the information about this research topic of which it had facilitated the completion of my thesis. First my special thank goes to my brother in-law Hon.Marik Nanga Marik and his wife Athiei Maguk Vlajok who is sister to me on the other hand, for their suppo1is they had rendered to me during my four years of undergraduate until I reached this time. I also owe special thanks to my sister Along Magok Majok and the rest of my sisters whom their names are not appear here. I also appreciate my brothers namely Matiok Magok, Matur Magok, Paul Malou Magok, Samuel Gai Magok. Mathew Laat Magok, for their supports both financially and morally including some of my brothers whom their names are not mentioned here. I would also like to registered my warmly thanks and appreciations to some of my uncles sons and cousins and some Pakam Youth who were wishing me success namely William Magak Machar ,William Mayat Nyiny,Peter Abo! Kachuol, Aleu Mourteer,William Deng KuoUoseph Muoth Meen,Marik Yep Manyuoi,Makuer Dok Muorwel,Kharbino Majok Chaat .\luonvel Matiok Gerry, ,Robert Makur Dok, Makom Magon, Daniel Wal Riak ,Paul Manyiel Matuol,Arop Kumbai ,Marual Machar .Bhargel Malou ,Peter Mathiang Mayorn,Manico i\lanyicl Kuch, and the other sons and cousins of mine whom their names are not stated here because of the space. My thanks also goes to some Pakam elders and uncles for their encouragements and supports they had rendered to me during my studies namely, Hon.Peter Manyiel Ater, former Minister of Social Welfare and Development former State, Hon. John Biliu Awuol former Commissioner former Rumbek North County, Hon.Madong Muorwel. not to forget Late Hon.Matoc Dut Machiu may his soul rest in peace.

Finally, I would like first to repeat myself to give my particular thanks owed to those good friends of mine who were willingly supported me in good faith and honestly to have cornpletecl my studies namely Dut Malek Malual, Maker Paul Madit, Hon.Chol Tong Mayay former Governor, former Lakes State, Maria! Dongrin Ater, Jacob Madhieu. Yusif Pachong Maluat. Hon.Dut Makuet, Kuo! Majok Hon.Kongor Deng Kongor Deputy Governor . Dear all thanks you very much your supports is unforgettable.

iv ABSTRACT The abbreviation ADR stand for Alternative Dispute Resolution. Basically on the abstract about this research, is to examine the role of Alternative Dispute Resolution in armed conflict situations like the South Sudan case that I am now researching about it. The brief statement in term of introduction is to define the term dispute that is encompasses in this thesis because the area of my research deal with the application of ADR and the legal frameworks which are supposed to be apply in armed conflict situation because disagreement doses not comes v\ithout dispute. The simple definition of the term dispute as subject matter of this research in armed conflict situation, "dispute" is indispensible part of societal interaction since the inception of human settlement. If it is not well taken and resolved early. dispute between two individuals will grow up and become threat to national security, peace and stability. which are the basis parameter to measure the development of the nation. With the objectives of settling dispute in a more justifiable means where all the parties to the conflict have to accept to negotiate and agreed on the principles and the terms of the agreement.

The ADR as method of settlement has its own jurisdictions where it can be apply and \vhere it does not apply or covers, the objectives of this research is about the roles and mechanisms provides by ADR in the arms conflict for the case of South Sudan before and after independence. It has means of helping the parties to bring peace and also to find the way forward whether ADR as a mechanism of resolving disputes can be the only way to bring lasting peace if the parties to the conflict have agreed on negotiation terms. An example of 15 th December 2013 South Sudan armed conflict was engineered within the ruling Political Party the Sudan People Liberation Movement (SPLM) on the issue of political changes and the amendments of the current SPLM Constitution of 2008.

V List of cases Court of Arbitration at Hague in Netherland (July 2009) between Sudan Government vs. Sudan People Liberation Movement (Government of Southern Sudan)

Brain Raftopoulos and Karin Alexander (2006)

Claire Mc Envoy and Emile Lebrun, uncertain future: Armed violence in South Sudan, HSBA working paper No.20, April 2010 P, 13

Comprehensive Peace Agreement CPA (9 th January 2005) Sudan Government vs. Sudan People Liberation Movement / Army

David Yau Yau SSDMCF vs. The Republic of South Sudan (2010-2012)

Karl R.ReRoun and UK I--Ieo.civil wars of the world: World WarII.ABC-CLIO.P.744

Renegade late Gen.George Athor Deng vs. The Republic of South Sudan (2010-2011)

Sally Baden (1997) at http:www.bridge.ids.ac.uk/Reports/ve40c.pdf.html Last accessecl/24/2014.

Sam Tindifa.pdf.Last Accessed (25 th /March/ 2014)

Samuel B Tindifa (2001) available

Seymaoure; Lee J.M.P.200.Rev of Dougles-The Root causes of South Sudan,s Civil 2015

SPLM In-opposition Leader Dr. Teny, SPLM Political Detainees and other Political Parties vs. The Republic of South Sudan (15 th December 2013-2016)

YoungJohnJune(2007)

vi List of Statutes

The Transitional Constitution of the Republic of South Sudan 2011 as amended

Comprehensive Peace Agreement (CPA) between Sudan People Liberation Movement and the Republic of Sudan 9th January (2005)

Addis Ababa Peace Agreement between the Government of the Republic of South Sudan and the Rebel SPLM In-opposition of Dr.Riek Machar and SPLM Political Detainees and other Political Parties signed in I i 11 -26th August(2015) under auspices of IGAD

SPLM Arusha Peace Agreement Intra-Party for Reunification under auspices of Chama Cha Mapinduzi in Tanzania signed on 21 st January 2015

vii LIST OF ACRONYMS

AAP A Addis Ababa Peace Agreement

ABC Abyei Border Commission

AA T Abyei Arbitration Tribunal

ADR Alternative Dispute Resolution

AU African Union

CEA WC Committee for Eradication of Abduction of Women and Children

CF Copra Faction

CPA Comprehensive Peace Agreement

COH Court of Hybrid

COH Cessation of Hostilities

DOP Declaration of Principles

DRC Democratic Republic of Congo

DSR Defense and Security Review

DUP Democratic Unionist Party

FVP First Vice President

GONU Government of National

GOS Government of Sudan

GPAA Greater Pibor Administrative Area

GRSS Government of the Republic of South Sudan

HAR Humanitarian Assistance and Reconstruction

viii IDPs Internal Displaced Persons

IGAD Inter-Governmental Authority on Development

INGOS Indigenous Non-Organizations

JMEC Joint Monitoring Evaluation Commission

LRA Lord Resistant Army

NIF National Islamic Front

NTA National Transitional Assembly

NUP National Unionist Party

OPP Other Political Parties

PSC Peace and Security Council

PDF People's Defence Forces

RCC Revolutionary Command Council

SAA Special Arrangement Area

SAF Sudan Army Forces

SAL W Small Arms and Light Weapons

SPLA Sudan People's Liberation Army

SPLAIO Sudan People's Liberation Army In-Opposition

SPLM-FDs Sudan People's Liberation Movement Former Detainees

SPLM Sudan People's Liberation Movement

SSCSP South Sudan Civil Society Groups

SSDC P South Sudan Democratic Change Paiiy

ix SSDMCF South Sudan Democratic Movement Copra Faction

TGONU Transitional Government Of National unity

TNA Transitional National Assembly

UK United Kingdom

UN United Nations

UNICEF United Nations Children's Fund

USA United States of America

VP Vice President

X TABLE OF CONTENTS

DECLARATION ...... i APPROVAL BY THE SUPERVISOR ...... ii ACI<.NOWLEDGEMENTS ...... iv ABSTRACT ...... v List of cases ...... vi List of Statutes ...... vii CHAPTER ONE ...... 1 INTRODUCTION ...... 1 1.0 Background to the Problems ...... 1 1. I Historical Background of the current Armed Conflicts in South Sudan ...... 2 1.1.1 Systematic Causes of Armed Conflicts in South Sudan ...... 4 1.2 Staten1ent of the Problem ...... 5 1.3. Objectives of the study ...... 6 1.3.1 General Objective ...... 6 1.3.2 Specific Objectives ...... 6 1.4. Research questions and Legal framework for ADR as a means of resolving armed conflicts ...... 7 1.5 Scope of the Study ...... 7 1.5.1 Geographical Scope ...... 7 1.5.2 Subject scope ...... 8 1.5.3 Ti111e Scope ...... 8 1.5.4 San1pling Scope ...... 9 1.6 Significance of the Study ...... 9 1.7 Methodology ...... 9 1.8 Research design ...... 10 1. 9 Study area and population ...... I 0 1.10 Sample size and sample selection ...... 10 1.11 Data Source ...... I 1 1.12 Data collection methods ...... l 1

xi 1.12 .1 Questionnaires ...... 12 1.12.2 Interview ...... 12 1.13 Procedure ...... 12 1.14 Data analysis ...... 12 1.14.1 Quantitative Data ...... 12 1.14.2 Qualitative data ...... 13 1.15 Limitations and delimitations ...... 13 1.16 Literature Review ...... 13 1. 17 Effect of Armed Conflicts in South Sudan ...... 17 1.18 Factors for the Increases of Armed Conflicts in South Sudan ...... 17 1.19 Arrangements of chapters ...... 18 2.1 Historical background of armed conflict resolution mechanisms in South Sudan ...... 19 2.1.1 Addis Ababa Agreement (2015) ...... 27 2.1.2 Termination of the agreement ...... 28 2.1.3 Second ...... 29 CHAPTER THREE ...... 33 2.1 .4. Legal framework of ADR and the Types of ADR ...... 33 2.1.6 Civil war ...... 3 8 2.1.7 Before 2013 ...... 38 2.2 Addis Ababa Agreement ended ...... 38 2.2.1 Sudan People's Liberation Army (SPLA) ...... 39 2.2.2 The 2013-2016 Coup Attempt ...... 39 2.2.3 Negotiation and escalation ...... 40 2.3.lConduct of the war: (2013-2016) ...... 41 2.3.2 SPLM dissension ...... 41 3.1 Sudan People Liberation Anny and Sudan People Liberation in Government (SPLA/SPLM) alignments ...... 42 3.2.1 Peace agreement (CPA) Comprehensive Peace Agreement...... 43 3.2.2 The terms of the peace treaty were: ...... 44 3.3 Foreign interventions ...... 44 4.1 Arn1s Suppliers ...... 45

xii 4.2 Child soldiers ...... 46 4.3 Borders and Resources: The case of Abyei ...... 4 7 CHAPTER FOUR 5.1 Application of ADR 48 CHAPTER FIVE ...... 62 5.2 Conclusion and Recommendation ...... 62 BIBLIOGRAPHY ...... 69

xiii CHAPTER ONE

INTRODUCTION

1.0 Background to the Problems Armed Conflicts is fighting or dispute amongst the people using the small arms and light weapons or lethal weapons that causes destructions of peoples properties, loss of lives as well as all kinds of human rights abuses which are supposed to be settled by application of Alternative Dispute Resolutions as a mechanism of bringing the solution to sustain peace and reconciliation between the parties to the conflict 1• South Sudan is now comprising of 32 States, of former 28 States basically on the Presidential Order No 36 ,2015 and additional 4 other States which the President have just decreed recently in this year 2017, that make total of 32 States . Namely as follows: I Awiel East State 2 Awiel Centre State 3 Loi State 4 Gongrial State 5 6 7 8 9 10 Gok State 11 Gbuwde State 12 Tumbura State 13 Amadi State 14 Maridi State 15 16 Terkeka State 17 Namurnyany State l 8Imotong State 19 20 21Akobo State 22 Pangak State 23 Latjor State 24 Maiwut State 25 Central State 26 Northern Upper Nile State 27 Pashoda State 28 Ruweng State 29 30 31 and 32 .

South Sudan occupies an area of about 644,329 Sq.KMs.The country has a populations of about 8 millions and above according to the then Sudan Nationwide Population Census held in2008. This means that the country is large and sparsely populated in most areas. It also implies that the country has abundant resources per captia.These resources are also the causes of the armed conflicts because some people are complaining about corruptions and marginalization. If these resources can be well managed, there are possibilities for enlarging the pie for state and nation building. This thesis analyzes the role of conflict resolution mechanisms in armed conflict situations like in this case of South Sudan where the leaders fought for their own advantages like the current war is being characterized by so many things. The role of conflict resolution mechanisms in armed conflict situations play in determining peace and security through mediation, negotiation, arbitration and reconciliation in South Sudan in reference to the

1 http://www.CPA Comprehensive Peace Agreement between Sudan People Liberation Movement /Army and Sudan Government under auspices of IGAD (9 th January 2005) in Naivasha Kenya

1 Comprehensive Peace Agreement (CPA) of 2005 that brought peace in the then Sudan between Sudan Government and the SPLM/SPLA). The thesis presented the introduction where the purpose, scope, methodology and conceptual framework of the research situation on the role of conflict resolution mechanisms in South Sudan conflicts were spelt out. The development of inclusive and equitable national policies for application across states, counties and ethnic groups is vital for sustainable utilization of role of conflict resolution mechanisms and for long term peace and security in South Sudaii. For this to happen, there was need for a combination of bottom-up and top-down approaches to peace and security issues in the country.

Among the multiplicity of factors that reflected the complexity of South Sudanese peace and security, the causes of armed conflicts in South Sudan was characterized by so many things such as bad governances, corruptions, marginalization as well as lack of democratic systems in the country. Thus, the real impact of the armed conflicts needed to be examined thoroughly and candidly in order to identify sustainable solutions. The long running war bet\veen the Government of Sudan (GOS) and rebel groups including the Sudanese Peoples Liberation Army /Movement (SPLA/M) lasted about 21 years, and was brought to an end by the Comprehensive Peace Agreement in 2005 as stated before. Six years later, South Sudan was born as a new state after a referendum held 2011.The war left large parts of South Sudan underdeveloped and plagued by insecurity as a result of inter-communal conflicts, pmily resourced-based .Cattle raiding and inter-communal conflicts based on access to water and pasture remain a major source of insecurity-and casualties-especially in the region, Eastern and Western , and Lakes State. The inter-communal conflicts in Jonglei affected about 170,000 by July 2012. An estimated 7,000 were killed in Jonglei from 2005 to 2012. 2.500 in 2009 alone because of the inter-communal armed conflicts.

Persistent violence in South Sudan undermines socio-economic development, displaces populations as well as caused thousands of deaths and suffering to innocent civilians.

1.1 Historical Background of the current Armed Conflicts in South Sudan The genesis of armed conflicts in South Sudan had been in existence since before independence in1991 and after independence 2011. In December 15 th 2013 there was coup attempt in Juba City by forces loyal to former vice president Dr. Riek Machar that fought with the Government forces

2 The definition is borrowed from the conflict Resolution of 2007,USIP

2 until when the peace was signed in August 2015 in Addis Ababa Ethiopia under auspices of IGAD. Eventually, in 2016 the Government and the opposition agreed to form Transitional Government of National Unity (TGoNU)amongst the disputed parties of SPLM in Government, SPLM -In opposition led by Dr. Riek Machar and SPLM Political Detainees which the called G 10 led by former Sudanese Peoples Liberation Movements (SPLM) former Secretary General Pagan Amuom Okech. This agreement provided all the paiiies with equal economical and political opportunities reflected in a fair sharing of power and wea!th3.

With regard to armed conflict caused by unfairness ai1d disrespect of the constitution where the ruling cliques divided themselves didn't mind of the democratic rights within the paiiy. when all those things were seen tearing the country apaii so the South Sudan's Transitional Constitution was amended in 2016 provides that South Sudanese people are equal in rights and duties and there shall be no discrimination by reason of tribes or ethnic groups 4. Article 14 of South Sudan Transitional Constitutional 2011 as amended that talk of Equality before the Law. All persons are equal before the law and are entitled to the equal protection of the law without discrimination as to race, ethnic origin, color, sex, language, religious creed. political opinion. birth. locality or social status

Since then the two basic factors which had characterized South Sudanese grievances had been (a) the sharing of political power, and (b) the distribution of national wealth ( cl) dissension within SPLM Parties 2013 .The civil war, which broke out in 2013 between the South Sudan warring parties, was brought to an end in 2015 following the signing of the Addis Ababa Agreement by the Government of South Sudan and the Rebel Leadership under Dr. Riek Machar Command. There was relative peace observed somehow until when the present Civil War started when he Dr. Riek Machar left Juba in July 20 I 6 with the division of the ranks and files of SPL/SPLA In­ opposition factions 5.

It was clear that the civil war had caused untold suffering to the civilian population in the areas affected by the war. Since 2013, the SPLA in Government had controlled much of South Sudan.

3 Article 14,South Sudan Transition Constitution of 2011 4 http://www.South Sudan IGAD Peace led in Addis Ababa (2013-2015) 5 http://www.lGAD led peace between South Sudan warring parties in Addis Ababa (26th August, 2015}

3 More recently, Rebel-based faction and government had conducted direct negotiation under the auspices of the Inter-Governmental Authority on Development (IGAD)6

The phenomenon of armed conflict had been in existence for long time as a tribal practice in the transition zones and had its roots in tribal conflicts over pastures. The lack of respect and ignorance of the law by the conflicting paiiies to armed conflict had also increased and that led to abuses of Human Rights and endless armed conflicts in South Sudan causes the deaths of so many people. The application of the role of conflict resolution mechanism in armed conflict situations would reduce the violations. Thus the armed conflict that caused problem to , enerable people both women and children in the affected conflict areas in South Sudan need to be protected and their status given a lot of attention under national ,regional and international laws to help to reduced the roots causes of their problems.

1.1.1 Systematic Causes of Armed Conflicts in South Sudan As mentioned in the introduction, the systematic causes of armed conflicts in South Sudan include inter-ethnic fighting, were closely linked to the on-going armed conflict and were perpetrated by both the Government of South Sudan (GOSS) and the Sudan People's Liberation Army In-Opposition and its allies. Such causes had resulted in displacement, starvation, killing of civilian and abduction of women and children. The situation has been aggravated in the framework of the on-going conflict, because both GOSS and SPLA In-Opposition applied the policy of arming tribal militia, so the weapons became available to everyone, which fuels the raids between tribes. Allegations of Armed Conflicts has become like practices in South Sudan began to emerge in early from 1991 and in mid,2005,2013-2016 up to the present time when the SPLA In-Oppositions deliberately chose to spread the civil war to the Western State of Equatoria, and Regions. In the part of Bhar El Ghazal Region, the SPLA In-Oppositions attacked some villages between Nagero County in and Wau State of Bhar El Ghazal Region in the process killing very many people and wounded many others. Following this, the Government of South Sudan, provided arms to several other groups to protect themselves. At the same time the SPLA In-Oppositions armed tribal militia who supported Dr.Riek Machar7. 2016-2017, continued with the policy of arming tribal

6 http://www. Southern Sudan and Sudan Peace Accord signed in Addis Ababa on (9 th January, 2005) 7 www.SouthSudan peace Agreement lih August (2015) in Addis Ababa

4 militia? The tribal militia were encouraged to take the war to Dinka communities suspected of supporting the SPLA Forces loyal to President Salva Kiir.Unfo1iionately, these militia lacked discipline that was also causing problem to Dr.Riek Machar on the other hand8.

Thus, the allegations of armed conflicts had arisen out of the inter-tribal conflict over water and pasture, between nomadic tribes such as Dinka and their Nuer neighbors since time immorial.During the dry season the Dinka tribes moved to the other side of Unity State under the control of the both SPLA in Government and SPLA In-Oppositions, for fe1iile land and fresh water9.

The Dinka and Nuer tribes, which inhabited the area, defended their land and cattle against each "invaders", thus leading to clashes. The consequence of this was the killing of women and children on both sides, cattle rustling and burning of huts. The SPLA IO had been abducting children to use them as soldiers. Furthermore; the SPLA IO had been engaging in planting mines around several areas under their control for some years 1°.

1.2 Statement of the Problem There had been persistent armed conflict in South Sudan for unprecedented period of time ranging from the time when the country got her independent in 2011 from Sudan. In 2013-2015 the crisis engineered by party politics on 15 th December where the main ruling party SPLM divided its self into so many factions of SPLM-IO led by the former vice president of South Sudan and first deputy chairperson of SPLM and SPLM political detainees headed by the former SPLM Secretary General Pagan Amuom Okech.These conflicts had resulted into Human Rights violations, displacement of people and loss of lives though it cannot be compared to the longest civil war in the then Sudan that had cost deaths of 2.5 million people from 1983-2005 apart from 1955-1972.The 2013-2016 up to present fighting lost unknown number of people as well as destruction of social fabric among others.

Efforts had been made such as 2015 Addis Ababa Agreement between the Government of South Sudan and the Rebel groups led by former vice president Dr.Riek Machar under auspices of

8 The SPLA was at its inception and still under the Leadership of Colonel Garang.{16 th May, 1983 up to 30th July 2005) 9 Respect, Sudanese for Human Rights 'Culture and Issues of Cultural Diversity(,9 th Issue, November 2008) 10www.South Sudan-forall.org

5 IGAD led peace negotiation. One of these efforts had resulted (yield) with the peace in South Sudan that lasted temporary between Machar and Government, but was later carry on by the former chief negotiator on the side of Rebel of which the opposition groups divided themselves into so many factions that led to as the Successor to Dr.Riek Machar in the designated position of first vice president as per Addis-Ababa Agreement.. It was because of the same agreement that led to the formation of current South Sudan Government of National Unity (TGoNU) including the current Peace Dialogue Initiative which is the continuation of the 2015 agreement. The Resolutions and agreement concluded at the conference continued to be invoked as model for peace and reconciliation and agreements for coexistences between the peoples and 64 tribes of South Sudan. These attempts were made but in long run they were dishonored by all tI 1e parties. to tI 1e agreement I I .

1.3. Objectives of the study

1.3.1 General Objective To carry out an analytical examination of the role of conflict resolution mechanisms in armed conflict situations using a case study of South Sudan and how the ADR can be apply.

1.3.2 Specific Objectives 1) To investigate the different causes of armed conflicts in South Sudan

2) To establish the reasons for deteriorating factors of armed conflicts in South Sudan and what will be the mechanisms.

3) To critically examine the adequacy and relevancy of Alternative Dispute Resolution in Armed Conflicts situations in South Sudan.

4) To found out the strategies that had been put in place to promote the application of Alternative Dispute Resolution in armed conflicts in South Sudan.

11 Respect, Sudanese Journal for Human Rights 'Culture and Issues of Cultural Diversity ,(9th Issue, November 2008)

6 1.4. Research questions and Legal framework for ADR as a means of resolving armed conflicts. 1) What were the different causes of the armed conflicts in South Sudan?

2) To what extent does the role of conflict resolution mechanisms in armed conflict situations in identifying the causes of armed conflicts and the mechanisms to bring the solution and the legal framework for ADR as to be put in place as a means of resolving armed conflicts?

3)What are the roles of ADR in Civil Society, National, Regional and in International matters. the Government of South Sudan, Sudan People's Liberation Movement Army In-Oppositions and the tribes in resolving this problem?

4) What explains the deteriorating increases of armed conflicts in South Sudan?

5) What strategies had been put in place to promote the use of application of ADR as the mechanisms to resolved disputes in South Sudan?

1.5 Scope of the Study

1.5.1 Geographical Scope The study was carried out about South Sudan. The South Sudan is one of the newest African State created in 2011 as a result of referendum. It has an area of 644,329 KMs.Juba is the Capital City of South Sudan. It is because of its persistent armed conflicts that is why I chose to research about South Sudan as a State. Because armed conflicts in the country caused a lot of unrest in the state that need special attention on how to resolve all these disputes using the ADR as the mechanisms or methods of solving these problems.

7 FIGURE 1: A map of South Sudan

1.5.2 Subject scope The study investigated the armed conflicts causes in South Sudan as weU as factors for increasing armed conflicts and the mechanisms that have been put in place to resolve these problems in South Sudan.

1.5.3 Time Scope The study considered unrests and causes of armed conflicts in South Sudan from 2013-2015 because it is the period when the country has been facing serious fighting between the Government forces and the rebel forces led by Dr. Riek Machar the former First Vice President Jf South Sudan.

8 1.5.4 Sampling Scope The study sample included mainly community members in South Sudan and civil society who are mostly affected by the conflict and all the parties to the conflict including all the victims of the conflict. Simple random sampling was used to select community members and purposive sampling was applied to select key information. A total of 80 respondents were used as the study sample.

1.6 Significance of the Study The findings to this study will be relevant to civil organization operating in South Sudan. These organizations will be able to strengthen their activities towards Alternative Disputes Resolutions in the country.

To the government and policy makers, findings will enable them to realize the contributions of the civil society organizations and warring parties have to seek for the mechanisms of resolving the problem such as negotiation,meditation,arbitration and reconciliation as the easy means of settling the disputes.Therefore,government can come up with better policies to enable both civil society organizations to work in a convenient environment because civilians are tht' one who suffers if there is any armed conflict arises.

To academicians, the findings will contribute to the existing literature on armed conflicts causes in South Sudan. Academicians will thus be in position to use the study findings as point of reference.

To researchers, the study findings will open up possible areas of research as this study will suggests means of settlement and the manner needed in the peace process on how the all parties to the conflict had conducted themselves in order to bring warring parties for peace to prevail all over the country and give people hope of bringing everlasting peace and tranquility to the people of South Sudan. The study is significant to differentiate between the laws of the state and the international and regional standard of handling matters arising in that nation that need the interference of international community for settlement.

1. 7 Methodology The term methodology is a system of explicit rules and procedures in which research based and against which claims of knowledge were evaluated.

9 This research was conducted mainly on the materials concerns in relation to Alternative Dispute Resolution and you can go and check some other books in the library. And existing literature on the topic was consulted. Another useful source of information was the Internet. It contained several resources that were useful for the research. Several websites contained information, which dealt with armed conflicts resolutions. Further still I consulted various Regional and International application of ADR as the mechanisms of solving disputes as an instrument. South Sudan's domestic legislation, and press releases.

This chapter provides a description of research design, nature of the study, sources of data collection, sources of information, sample size and the methods employed in data collection.

1.8 Research design The researcher used descriptive design to describe and explain conditions relating to the armed conflicts in South Sudan. Both quantitative and qualitative research approach were applied.

1.9 Study area and population The study was carried out in South Sudan. South Sudan is the 54rd country and the newly created state in Africa Continent, it has 32 states including the newly created Greater Pibor Administrative Area (GP AA) promoted now as Boma State which was formed as a result of the peace agreement signed with the Government of South Sudan and the Rebel of David Yau Yau called South Sudan Democratic Movement/ Army Copra Faction in 20I0-2012 that was promoted as Boma State in accordance with the 2015 Presidential Order No. 36 that created 28 States in South Sudan later increased to be 32 in this year 2017.I selected to research about armed conflicts in South Sudan and to examine the root causes of all these persistent armed conflicts that affected the whole country with political unrests all over the country.

1.10 Sample size and sample selection Simple random sampling was applied to select 70 community members. Simple random sampling involved the researcher selecting households in South Sudan communities at random. The main advantage of simple random sampling is that it gives equal chances to all members in the population. Purposive sampling was applied to select key informants and that is; 3 journalists, 5 civil society officers, 3 law enforcement officers, and 9 victims of armed conflicts. The total study sample was 70 respondents.

10 Table 1: Sampling Approach

Approach Sample Selection Data collection Types of samples I Quantitative Systematic sampling Structured 30 community members interviews (male) 30 Community members(female) 60 respondents Qualitative Purposive sampling Semi-structured 3 Journalists interviews 5Civil Society officers 3 Church representatives 9 From both parties to the conflict 9 Victims of armed conflict 20 Key Respondents

1.11 Data Source Data was collected from both primary and secondary sources. The primary source involved obtaining raw data from respondents from community members in South Sudan. The secondary source involved reading already published and stored processed information sourced from the store of records, libraries and publications on armed conflicts situations in South Sudan.

1.12 Data collection methods The researcher used questionnaires to collect information and an interview guide to acquire further information about the parties to the armed conflict and for the promotion of the ADR as the only alternative mechanisms of solving problems outside court and Alternative Dispute Resolution to be the fair method of involving warring parties to expresses their grievances using negotiation and mediation.

11 1.12.1 Questionnaires This is an instrument which consists of questions which are set in a logical order which the respondent is required to apply in writing. Questionnaires are required for information which the respondents have and were written in a very simple language which will help the respondents to answer questions without assistance. The questionnaires was a combination of close ended questions which includes all possible answers and respondents were asked to choose among them by ticking, and open ended questions which allowed respondents to answer in their own words.

1.12.2 Interview The researcher was guided by interviews to collect primary data from key informants, this is basically because it allows the researcher to obtain information that cannot be observed directly, to gain control over the time of questioning and allow the researcher to rephrase questions and ask additional ones to clarify responses and secure more valid results.

1.13 Procedure The researcher obtained an introductory letter from Kampala International University School of Law. The letter was taken and presented to the authorities in South Sudan seeking permission to carry out the study in the towns. The researcher then selected study respondents, brief them about the purpose and significance of the study, ethical concerns and then distribute questionnaires.

1.14 Data analysis This is when the researcher collected data and after collecting data then he/she may come to analyze how this data is going to be on its procession.

1.14.1 Quantitative Data After data collection, the data was processed, edited, coded, gaps filled and analyzed by the use of relevant analytical tools such as Excel, SPSS and tables for frequencies, chi-square, pie charts. graphs and percentages to present the data gathered. This was done to ensure accuracy. adequacy, completeness and legibility of researcher when summarizing collected data and organizing it in a way that answered the research questions and fulfill the objectives of the research.

12 1.14.2 Qualitative data Qualitative data was analyzed by identifying tentative themes and their concepts. The tentative themes are; causes of armed conflicts in South Sudan, and the mechanisms to be put to promote the use of ADR as the means of solving disputes. Data was analyzed during and after data collection. After data collection and the coding, the results were tabulated and interpreted accordingly.

1.15 Limitations and delimitations The time provided for the study was limited to exhaust all the aspects of the research like collection of data, receiving related literature among others. However, this was solved by the researcher training a research assistant and fixing time for preparing the instrument and receiving of related literature before the actual research period in order to utilize the indicated time well. The researcher anticipates financial constraints, insufficient funding for travel, typing of several drafts logistics printing, costs of the final copying and contingency costs associated with research work. This was solved by securing enough money for the research work in order to avoid financial delays.

The researcher was likely to find difficulties in designing simple questions and setting deadlines for the questionnaires, time delay whilst for respondents, during interviewing the researcher may be faced with embarrassment and some respondents might be rigid in giving information. To overcome such a challenge, the researcher needed to undergo training on hO\v to handle different personnel and on how to administer research instruments.

1.16 Literature Review The chapter is a review of previous scholarly work on the armed conflicts situations, role of the civil society organizations in promoting mechanisms of solving problem which is adapting ADR as peaceful means of settling the disputes arises.

Scanty literature is available on the abuse of human rights of women and children in conflict areas in South Sudan. Scattered information can be found in reports and press releases of CEA WC.However, there exists considerable literature on the general topic gender violence in situations of conflict.

13 Sally Baden 199i 2 talked about women and children caught in conflict situations. She emphasized how armed conflicts or war was devastating to women. However, the book was not centered on the abduction of women and children as such, but talked about problems faced by women and children in time of conflict. Such problems include abduction, sexual violence and forced labour were the effects of armed conflict.

The Armed conflict according to anthology "Common Grounds Violence against Women in War and Armed Conflict Situations", consists of aiiicle, which were presented at the International Conference on Violence against Women in War and Armed Conflict Situations held in Tokyo in 1997.The thesis highlighted the human rights violations against women in many countries such as the Philippines, Indonesia, Bangladesh, Algeria, Rwanda and Bosnia as a result of armed conflicts. The presentations focused on the enormity of the tragedy the women have had to live with, the unprecedented nature of human rights violations, as the causes of armed conflicts and the vastness of its scale in terms of the members of women affected and the sheer ruthlessness of the perpetrators, the denial of ai1d reparations, and the immeasurable ruin of human life that means Alternative Disputes Resolutions could be the best to solves the problems as the easiest way of settling the crisis. In the same book, Ritu Menon, in her thesis "Borders and Bodies: Recovering in the National Interest", explained that in 194 7, India was divided into India and Pakistan, a division based on religious differences. The partition of the country forced the largest-ever peace time mass migration of people in history. Ten million people left their homes and moved from West Pakistan and East to India as Hindus, Muslims and Sikhs became both the victims of which were the consequences of the armed conflict and brutal violence occurred. I 00,000 women were abducted by men of all communities during this time because of all these armed conflicts arose between the communities. These conflicts affected people mostly by forcibly converted some of the peoples to the religion of their abductors, they were then recovered by the Indian and Pakistanian Governments through negotiation as the means of solving the armed conflicts, in program that, though "humanitarian'' in intent, became coercive and violent. The similarities between what happened in India/Pakistan and the situations in South Sudan was that in both cases women were the main victims of armed conflicts like in the current situation in the Republic of South Sudan where the victims were the women and children

12 Sally Baden (1997) Available at http:www.bridge.ids.ac.uk/reports/re40c.pdf.html Last accessed (24 th 2014)

14 affected mostly by the fighting between the Government forces and rebel forces of Riek Machar .The differences lied in the fact whereas in India and Pakistan the women were forcibly converted to the religion of their abductors, in the case of South Sudan the women and children were subjected to forced labour,raped and/ or forcefully marriage.

According to Anne-Marie Mukwayanzo in her chapter p.200, The Impact of the War on the lives of women and children. She states that when war comes/ armed conflict, the mother-child unit becomes even closer because at such a time children need to feel protected and the maternal instinct kept the mother a prisoner of her children, whom she could not left. For this reason, they jointly suffered the horrors consequences of war at all levels. In addition it contained information that related to the role of women in economy and in the peace making process.

Noel Kataike,1998 in his book," A study of the Manipulation and Abduction of the Child into Soldier during Armed Conflicts in Northern Uganda,Gulu District," talks about the abduction of children by the Lord's Resistance Armed (LRA) and its support by the GOS.This book focuses on the situation in Uganda. The children referred to face similar situations like those in South Sudan. They face harsh conditions such as military training and actual participation in military activities. This book is useful for cooperative purposes.

Samuel B.Tindifa 2001 13 discusses the sufferings of minorities and indigenous in armed conflict. He provides three case studies from Rwanda, Sudan and Somalia. This article did not explained the status of women in spite the fact a woman rarely abandoned her children in the times of emergency.Tindifa explained in Sudan in the inter-ethnic conflict between the SPLA in­ government and SPLA in-opposition, the Mundari 14and the Murle 15, the SPLA In-opposition had often carried out indiscriminate attacked against civilians. Government forces also accused of executed many civilians after the failed conquest of Juba by SPLA In-opposition in 2013.So in the South Sudan, civilians had found themselves caught up between the belligerents who counter accused them of aiding their enemies including South Sudan Government.

13 Samuel B Tindifa (2001) Available at http:www.worldsummit2002.org/texts/SamTindifa.pdf Last Accessed (25 th March 2014). 14 Mundari are an African Nilotic tribe living in South Sudan. 15 Murie are an African Nilotic tribe living in South Sudan.

15 The UNICEF report (1998) 16),"Shattered Innocent-Testimonies of Children in Northern Uganda,'' provides a clear picture of those children who were victims of a complex. protracted conflict they neither understand nor can control. These testimonies are useful for the research in order to overthrow more light on the kinds of suffering that the children in conflict situation faced. The report shown that many of the abducted children were forced to carried out tasks like carrying load over very long distances under inhuman and life-threatening conditions with often­ inadequate diets. These children were being deprived of their childhood by the selfish motives of the rebel group in Northern Uganda the same thing in South Sudan crisis.

The African women's repo1i (2004) by the United Nations Economic Commission for Africa, relates mainly to "Post Conflict Reconstruction" from a gender perspective. Reference is made to women's reconstruction strategies and initiatives in various countries, including long-standing conflict situations in Angola, Somalia, Rwanda, and the Democratic Republic of Congo (DRC).This report explained that the conflict involved an extremely complex set of issues. there were many different kinds of conflict, and there was armed conflict and its consequences.

South Sudan Foundation/ (2013), in its rep01i "South Sudan Missing Childdren"explained SPLA In-government and SPLA In-opposition's policy of separating boys from their homes and families for military training. Thousands of boys went to Ethiopia refugee camps hoping for an education and received mostly military training in segregated facilities for "unaccompanied boys". The SPLA inducted boys as young eleven into its ranks. It was clear that tens of thousands of Sudanese boys had been killed in ill-prepared offensives. Thousands of underage combatants have been maimed in the armed conflict. And thousands more were still being held by the SPLA for used as cannon fodder in the future ,literally being harvested, and used and as child soldiers when they reached the age of twelve or thirteen.

Human Rights Watch in its report (2005) 17,"Famine in Sudan as the cause of persistent armed conflict", focuses mainly on the preconditions for the famine in Bahr el-Ghazal which was established through: 1- the raids on Dinka communities by Baggara tribe, robbing them of their livelihood (cattle and grain), displacing them and abducting women and children; 2-the looting

16 The UNICEF report2004.Available at http://www.unicef.org/publications/files/pup sowc97 en.pdf Last accessed (25 th March 2014) 17 www.Human Rights Watch Reports on Sudan and South Sudan(2005)

16 of world's emergency relief program by the SPLA forces. This report was very useful on how armed conflicts affected peoples who were venerable; it explained the direct relation between the tribe raids and famine, so famine was a consequence of government design and rebel tactics.

1.17 Effect of Armed Conflicts in South Sudan Inter-Communal Violence: Because government would not have another means of controlling these communities when fighting rebel, hence cyclical fighting between ethnic communities caused by cattle-raiding, competition over land resources, and kidnapping of women and children continued to put civilians at risk of injury and death occurred as a result of armed conflict. The most intense clashes occurred between Lou Nuer and Murle communities in South Sudan Jonglei State, where over 1,000 people were killed between April and August 2011.

The government had taken some steps opting to chose the role of conflict resolution mechanisms as a way to resolve all disputes without taking these cases to courts and therefore the peace had to be achieved amongst the communities through promotion of reconciliation between neighboring communities. However, both the government and the UN peacekeepers had been unable to protect civilians and prevent these often predicted outbreaks of violence. Land mines and ongoing insecurity had hampered humanitarian access. The government had failed to conduct public investigations abuses against civilians and ensure accountability ( UNMlSS.

2011) 18 .

Attacked by the Lord's Resistance Army: Attacks and abductions by the Lord's Resistance Army, Ugandan rebel group, continued to pose a threat to civilians. The UN reported over 25 separate attacks in 20 I I .mostly in western areas of the country bordering the Democratic Republic of Congo and Central African Republic (UNMISS,2011) .The displacement of population in response to this violence had threatened food security, according to local officials. The SPLA and Ugandan People Defence Force (UPDF) continued efforts to improve safety, relying frequently on a local defense group known as the Arrow Boys.

1.18 Factors for the Increases of Armed Conflicts in South Sudan Governance issues, when the government has not put things systematically mismanagement of resources and bad governance in the country made many people go without essential services

18 United Nations Missions in Sudan (UNMIS) (2011) UNMIS Report on the Armed Conflicts causing terrible Human Rights Violence in Southern Kordofan,Sudan

17 provided by the state. The GOSS used most of its resources in administration, lack of good democratic system mean that no appropriation of petroleum policy in place to guide uses and distribution of the oil precedes. The public did not access information on the amount on money accruing from oil and how the money was spent.

The major problem that I have realized from most of our politicians is the lack of self control, meant that some politicians run out of patience and they don't know when to start the politics and in what situations you can exercises the politics.

1.19 Arrangements of chapters This research thesis comprises of five chapters. The First Chapter which deals with the introduction, providing the historical background to the study, statement of the problem. objectives of the research.

The Second Chapter study, research questions, the scope of the study, methodology and literature review. deals with the application of the types of the Alternative Disputes Resolutions with its basic characteristics of these different kinds widely used of ADR;Negotiation,Mediation. Reconciliation and Arbitration as the easy way or time management as well very cheap means of settling the deputes between the parties to the conflict. The role of conflict resolution mechanisms is to critically examining all the means of solving disputes and discusses the obligations of the State there under. Chapter three deals with the legal framework of (ADR) Alternative Dispute Resolution and the types of ADR.Chapter four which deals with the applications of ADR and chapter five about recommendations and conclusion.

18 CHAPTER TWO

2.1 Historical background of armed conflict resolution mechanisms in South Sudan This began from 2005 when Southern Sudan was granted Regional Autonomous government in

Juba known as Government of Southern Sudan (GoSS 19), there were many issues between the Southern Region and Northern Region of Sudan because of the differences caused by so many things such as religion, race, political domination and political monopoly by the Northern politicians in Khartoum and the neglected the Southern part of Sudan in political arena as well as forceful conversion of Christians Southerners into Islamic Religion.So,the peace negotiation was the only means of settlement that brought all the stakeholders of then United Sudan together to ironed out their differences and to laid down the mechanisms on how they dealt with the disputes amongst Sudanese people. That was the first armed conflict resolution mechanisms in the then Southern Sudan and Northern part of Sudan that gave the Southern Region the right to self­ determination when the people of the Southern Sudan went for Referendum in 2011.The people of South Sudan voted overwhelmingly to attained their independent from Khartoum Gu\ ernment where majority remain in Sudan as Muslims with 98% and the South Sudan with 99% Christians.

When you want to find the settlement to the problem, you better know the reasons that sparked or triggered the conflict instead for you to continue with solutions to the conflict that you did not assessed its causes. To the best of my knowledge, the South Sudan conflict has number of issues to what caused the violence that escalated into the civil war in 2013:

The problem started in the SPLM which is the ruling party now in Juba, in which the former First Deputy Chairman and at the same time former Vice President in the Republic or South Sudan Dr.Riek Machar and former SPLM Secretary General Pagan Amuom Okech and Madam Rebecca Nyandeng who was Presidential Advisor on gender the wife to late Leader Dr.John Garang the former SPLM Chairperson ,First Vice President of the then Sudan Transitional Government of National Unity (TGoNU) and President Government of Southern Sudan developed the tendency of each one of them to become SPLM Party flag bearer to South Sudan general elections which was supposed to be conducted in April 2015. The primary causes of problem triggered in the amendment of the SPLM Constitution of 2008 that was suppose to

19 www.CPA Comprehensive Peace Agreement signed Naivasha Kenya between the Sudan Government and the rebel Sudan People Liberation Movement/Army in (2005)

19 amended in 201, where some members who were close associates to the current Chairman of SPLM who is now the President of the Republic proposed that the voting in the SPLM Convention should be by showing up of hands by each and every voter in the convention for any contested positions in the pmiy which is normal exercises, it was also proposed that 5% percent of delegates to the convention were to be appointed by the Incumbent Chairman, hence this where the other groups I mentioned above come up and opposed the other groups seriously that led to the 2013 crisis20.

When time goes by, the groups led by Riek Machar and the groups led by both Pagan Amuom and the one led by Garang wife merged themselves against the groups led by Incumbent Chairperson with his best Comrade the second Deputy Chairman who later become successor to Dr.Riek Machar in the post of vice President in 2013 whenDr.Riek Machar was reshuffled by the presidential decree. Each groups called for a meeting with exclusion to the Incumbent Chairperson who was not informed about the parallel rallies being held in the same party without his consent. The SPLM defected groups began to trades accusations against the SPLM Mainstream headed by Gen. Chairperson and President of the Republic. The first faction of Riek Machar launched attacks against forces loyal to Salva Kiir in Juba on 15 December 2013 .So, the fighting spreads quickly to the other peaceful States of Unity. Upper Nile and Jonglei States these were the States which Dr.Riek Machar assumed to be belong to him because Dr.Riek Machar hails from Greater Upper Nile Region.

The case of Dr.Riek Machar was treated separately from the other groups of Pagan Amuon Okech and that of Rebecca Garang because the manner which Machar groups used regarded as typical gorilla war and they always talks of military regime changed which the government in Juba rejected seriously.Finghting continued until when the regional bodies called both parties to the conflict for peaceful negotiation in Addis Ababa including SPLM Political Detainees who were arrested by government security personnel on allegation that they were also campaigners of regime change and the one instigated the violence together with Riek Machar Teny faction though they did not joined the other group militarily. The other last group was the other Political Parties group who were not on the side of Government nor on the side of both Machar, Pagan

20 www.lGAD Peace Agreement Accorded in Addis Ababa Eithopia between South Sudan Government and Oppositions SPLM/SPLA-10,Political Detainees and other Political Parties to the conflicts (26th August 2015)

20 and Madam Rebecca Garang groups, this group was involved in negotiation by the mediation team on condition that they were neutral from all the other factions but their opinions were considered by mediators to have expressed themselves about the problem that had happened in the country and they were also stakeholders that their own views on the resolution of South Sudan conflict and how peace would come home needed their present in peace talk and the sharing of power later on when the agreement is going to sign21 .

After when mediation team called the warring parties including those who were not involved in physical confrontations, the mediators informed the all groups for the venue and frarnevvork instructing them on how the conduct of the peace talks is going to be and each and every delegations from all the factions to come with the Chief negotiators on the side of warring parties and the other groups with representatives from each. With all these informations,the Government of South Sudan delegated Hon.Nhial Deng Nhial as Chief Negotiator and Hon.Gen.Taban Deng Gai as Chief Negotiator on the side of Rebel SPLM In-Opposition led by Dr.Riek Machar and group of Rebecca Garang and that one of Pagan Amuom delegated Hon.Deng Alor Kuo! the current Minister of Foreign Affairs Government of South Sudan on their behalf and the last group other Political Parties led by Dr.Lam Ako! Ajawuin later being changed and brought in Dr.Martin Elia Lomoro the current Minister of Cabinet Affairs Republic of South Sudan.Therefore,that was how the negotiation and mediation team had started in Addis Ababa­ Ethiopia in2013.

The first of its kind, the warring parties were told to respect the cessation of hostilities on both sides of forces loyal to government and the forces loyal to SPLM/SPLA In opposition. They were also instructed to abide by the principles of the negotiation and mediation. The groups accepted all what mediation team said and they attended the venue and negotiation commenced immediately after instructions. When discussion began the parties realized that problem was originated in the ruling Pariy Sudan People Liberation Movement (SPLM).

The warring parties and the mediation team under auspices of IGAD led peace process put it on the Agreement on the Resolution of the conflict in the Republic of South Sudan agreed to accept what is so called implementation matrix, offers a comprehensive, balanced compromise

21 www.SPLM Reunification provided by Arusha Peace Agreement within the SPLM Party (21st January 2015) under auspices of Chama Cha Mapinduzi

21 settlement to an end to the civil war in South Sudan, ongoing since December 2013, and institute transitional arrangements sufficient to consolidate peace and stability for all South Sudanese. After discovering that the genesis of problem was in the party the members went to Arusha Tanzania for another negotiation and excluded the other political paiiies as well the Addis Ababa Medaitors, and SPLM Factions in Government, SPLM In-Opposition and SPLM Political

Detainees all come to discusses means of reuniting their own party22.

The paiiies according to the Arusha Agreement on the Reunification of the SPLM January 21 st 2015, stated in their own words;

We, the Delegations of the three SPLM Groups to the Intra-SPLM Dialogue, met in Arusha, Tanzania from January 8-19,2015 under the auspices of Chama Cha Mapinduzi (CCM) chaired by the former vice Chairman CCM,Cde.John Samuel Malecela and facilitated by the CCM Secretary General,Mr.AbdulrahmanKinana;

The parties recalling the heroic struggle of many generations of the people of South Sudan for freedom, dignity and independence against a background of a long history of conflicts, injustices, pove1iy and human rights violations;

According to the agreement the parties to the conflict mindful that the SPLM is currently plunged into an unprecedented crisis which has engulfed the country and led to a tragic and an enormous loss of human life and property, displacement of millions of citizens and threatens the existence of South Sudan;

The parties also acknowledging that the failure to institutionalize and democratize the exercise of power in the Party is among the root causes to the current crisis; further acknowledging that our collective responsibility for the crisis that has engulfed South Sudan;

The groups recognized that the loss of ideological direction and lack of clarity of vision by the SPLM Leaders have contributed to the emergence of the current crisis;

22 www.Arusha South Sudan Peace Agreement on the Reunification of the SPLM Party signed on 21st January (21 st January 2015)

22 They had also deplored the culture of militarism as sectarianism that has stunted the transformation of the SPLM from a liberation movement into a vibrant and democratic political party;

As the ruling party the SPLM had ironed out their differences and that was why they were told to come together as brothers and sisters within the files and the ranks of their popular party in the country. They were also keen enough to respects their political party reputations.

Accepting the urgent and imperative need for comprehensive democratic reforms in the Party as well as convinced the reunification and reconciliation of the SPLM is the key to the resolution of the current crisis;

The pmiies to the conflict affirmed their commitment to the reunification of the SPLM and driven by their patriotic will and determination to restored peace and the stability in order to rebuild their war-torn country23 . They had stated to be guided by democratic principles and values enshrined in the Article 5 of the SPLM Constitution 2008 and its Manifesto, and to give them effect.

The groups also were appreciating efforts of Chama Cha Mapinduzi and Crisis Management initiative in supporting this Intra-SPLM Dialogue and on the other hand, they applauding the constructive spirit of reunification and reconciliation and commitment to reforms in the Party displayed by the SPLM Tripartite Delegations throughout the Dialogue.

In line with both two agreements of Arusha and Addis Ababa, the parties come up with the following resolutions that they had agreed as follows:

II.ON POLITICAL ISSUES

❖ Implement and comply with the provisions of the Cessation of Hostilities Agreement and use the Intra-SPLM Party Dialogue in Arusha and the IGAD mediation process in Addis Ababa to expedite the conclusion of the Peace Agreement in order to end the war.

❖ SPLM Leadership shall make a public apology to the people of South Sudan for what had happened since December 15 th 2013.

23 www.SPLM Intra-Party Agreement for Reunification of SPLM in Arusha (21 st January 2015)

23 ❖ Develop and implement a comprehensive programme for national unity, peace reconciliation. healing and promoting harmony amongst the People of South Sudan.

❖ Committal the three SPLM Groups to Reunification and reconciliation of the SPLM Leadership and Membership.

❖ Combating the culture of tribalism, militarism and sectarianism in the political life and open up a space for achieving a political environment that promotes genuine political pluralism.

❖ Embrace the values and culture of democracy. unity and development to commits to undertake and implement urgent comprehensive democratic reforms, reorganization and

transformation of the Party24 .

❖ Ensure that the SPLM redefines its ideological direction, developmental path, the nature of its democracy, system of governance and the nature of society and state it aspires to build.

❖ The SPLM shall formulate and provides policies and programmes to be implemented by its Government with aim of achieving a democratic developmental state.

❖ Revocation of the decisions for dismissal of party cadres from membership and leadership oppositions resulting from the internal conflict within the party

❖ The SPLM commits to redefine and implement its vision of state and nation building in order to achieve a peaceful, democratic, just and prosperous South Sudan of equality, freedom and respect for human rights and dignity.

❖ Any individual SPLM member convicted by a competent court or tribunal of crimes against humanity. war crimes, crimes against peace or gross human rights violations and abuses during the crisis that erupted in the country since 15 th December 2013 shall not be eligible to hold public office in the Party and the Government.

❖ Ensure exclusion from participation in the SPLM structures of categories such as the armed forces and other organized forces and judicial personnel in accordance with their respective

constitutive laws25 .

❖ The SPLM shall uphold the principles of accountability, transparency and good governance and to combat corruption and malpractices in the Party and Government.

❖ In order to ensure peace and security in the country and guarantee public safety, the SPLM calls for the implementation of comprehensive reforms, transformation and

24 www.SPLM Party Resolutions on the Reunification of the SPLM signed in Arusha Tanzania 21 st January ( 2015) 25 www.SPLM Intra-Party Agreement on Reunification of SPLM signed in Arusha 21 st January ( 2015)

24 professionalization of all the security sector institutions and to ensure that their composition reflects national character.

❖ SPLM commits to and supports the establishment of a comprehensive system of transitional justice,(the core elements of which are truth and reconciliation, criminal prosecution,reparations,compensation and institutional reforms),to look into the issues of atrocities, human right violations and abuses in the country.

❖ The SPLM shall undertake robust mobilization of resources and shall ensure transparent and prudent management of such resources as well as conducting annual independent audits.

❖ In order to ensure that executive powers in government are not negatively used to influence or determine Party matters, all decisions affecting the party shall be taken only through the

Party structures26 . As I was mentioned before that the root causes of the crisis were originated in the Party Reorganizations that escalated into war in 2013 .The parties to the conflict accepted on Part three of the Arusha Agreement: III. ON ORGANIZATIONAL ISSUES Section 18 of the Arusha Agreement on the resolution of the conflict in the parties stipulated that the SPLM General Secretariat shall be restructured and reorganized in order to streamlines its offices and functions to ensure efficiency and effectiveness benefiting from experiences of sisterly parties and Liberation Movements. In or to implement this. the SPLM leadership .shall: a. The agreement stipulated that strengthen and streamlines coordination between the General Secretariat and other levels and provide oversight; b. Formulate procedures and guidelines for cadre identification recruitment,orientation,training and deployment to ensure commitment, competence and effective participation; c. Provide guidance to the SPLM caucuses in the Legislature and the Executiw: cl. Disseminate party policies; e. Ensure formulation and implementation of Pai1y disciplinary procedures and regulations;

26 www.SPLfv1 Party the Same Resolutions to resolved the disputes within the party for reunification signed in Arusha 21 st January ( 2015)

25 Paragraph 19 of the Arusha Agreement also talk of all processes of holding Party Congresses and the National Convention shall be suspend until the reunification and reconciliation of the Pmiy is achieved and the war is ended, so that all members are able to participate effectively and freely.

Paragraph 20 of the Arusha Agreement ,it is agreed that the National Liberation Council (NLC) shall revisit and review the contentious provisions, in the draft SPLM constitution to ensure internal democracy within the Party structures, before its presentation to the National Convention. These issues include, buts not limited the following:

a. Mode of voting: Whether by show of hands or secret ballot, it is agreed that the procedure of Voting in SPLM meetings at all levels shall be by secret ballot if no consensus is achieved; and by show of hands on non-controversial issues. b. The provision allowing the SPLM Chairpersons at all levels to nominate five percent (5%) of the membership of the congresses and the National Convention: The following is agreed:

1. Abolition of the provision on the (5%) percent appointments by chairpersons to the National Convention, congresses and liberation councils at all levels;

11. Political Bureau to formulate policy and guideline for the representation of minorities or disadvantaged groups in the Convention, Congresses and Liberation Councils. c. The size of the National Convention: It is proposed that the total number of delegates

to the Convention be reviewed27 .

d. The nomination of Party leaders by The Chairperson: Regarding the process of election or selection of Party leaders at all levels, it is agreed that:

1. The National Convention shall directly elect the Chairperson of the SPLM and his/her Deputies and members of the National Liberation Council bv direct and secret ballot.

11. The National Liberation Council shall elect the Political Bureau and Secretary General and his/her Deputies through direct and secret ballot.

27 www.SPLM Intra-Party Reunification Agreement signed in Arusha Tanzania (2015)

26 m. The Political Bureau shall formulate regulations governing procedures for the election and selection of candidates for the position of chairperson of the SPLM and his/her deputies, members of the NLC National Liberation Council,members of the Political Bureau, Secretary General and his/her Deputy(ies), State and County

Chairpersons,Payam and Boma Chairpersons28 .

The parties agreed that the draft SPLM Constitution of December 14, 2013 shall be the basis for future discussion of the new SPLM Constitution. They had accepted an Extraordinary Convention may be convened for the sole purpose of passing the basic documents agreed by the SPLM groups to facilitate its registration in accordance with the provisions of the Political Parties Act, 2012.

2.1.1 Addis Ababa Agreement (2015) The Addis Ababa Agreement, also known as the Addis Ababa Accord, was a set of compromises agreement within a 2015 treaty that ended South Sudanese Civil War (2013-2015)29 fighting in South Sudan. The Addis Ababa accords were incorporated in the Transitional Constitution of the Republic of South Sudan 2011 as amended as well as Arusha Agreement signed in Tanzania on January 21 st 2015 that they called "AGREEMENT ON THE REUNIFICATION OF THE SPLM"under auspices of Chama Cha Mapinduzi. So that is one of the armed conflict resolution mechanisms applied in South Sudan that was used as means of Alternative Dispute Resolution. There were courts in South Sudan which were supposed to dealt with such cases of armed conflict but, the parties to the conflicts opted to negotiations and mediations to have resolved the differences through ADR as a cheapest method for settlement. The results of the agreement had the goals to addressed and appeased concerns of both parties to the conflict the rebels and the government. The 2013 conflict is considered the South Sudanese Civil War grew costly in lives and resources to the people of South Sudan after independence. The Addis Ababa agreement of 2015 provided for the sharing of power between the government in Juba and the rebels groups of both SPLM in Opposition which was led by Riek Machar former vice president before crisis and designated first vice president of TGoNU and FDs former political detainees led hv SPLM former Secretary General with his share.

28 www.SPLM Party Reunification signed in Arusha Tanzania 21st January ( 2015) 29 Addis Ababa Agreement(2015)-Wikipedia, the free encyclopia http://en.wikipedia/.org/wiki/ Addis Ababa Agreement {26th August 2015)

27 After some months of relative peace followed, though the Addis Ababa Agreement failed to dispel the tensions that had originally caused civil war. The Addis Ababa Agreement proved to be only temporary respite. The bad legacy of war that caused mistrust and misunderstanding by all the warring pmiies led to increased unrest in the South Sudan stmiing in the late 7-8 and 9 July 2016 triggered another escalation of fighting that took place in Juba that was termed as coup by the government that led to replacement of Dr.Riek Machar by his former chief Negotiator General Taban Deng Gai as per the Addis Ababa Agreement that was signed 17th -26 th of August 2015 that stipulated that if one of the principal might have problem within 48 hours there shall be replacement if the position fall vacant or declared vacant30.

2.1.2 Termination of the agreement In 2016 when the Transitional Government of National Unity was formed by all the warring parties according to the shares that were given by the agreement. The forces loyal to former first vice president Dr. Riek Machar attempted coup and attacked the presidential Palace at J 1 in Juba in present of both principals to the agreement. After that incidence even Dr.Riek Machar himself escaped from Juba to bush where his forces were trying to capture the City but they could not made it. Then they all left for DR.Congo where UN saved them and therefore, Riek Machar made it publically of his resumption of rebellion against the government.ThereafteLPresident Salva Kiir Mayardit declared the position of first vice president vacant as stipulated in the Addis­ Ababa Agreement that incase one of the principal that is known by all the signatories to the agreement has problem which will not allow him to hold the position within 48 hours. The post has to be declared vacant, so president opinion relied on that principle. Despite nonexistence of Dr.Riek Machar in Juba the agreement kept on holding because there were many members of SLPM in-opposition presents in Juba. The members SPLM IO in Juba called for urgent meeting in their respective capacities as the members of the party and resolved to had nominated Gen.Taban Deng Gai who was the Chief Negotiator on behalf of SPLM In-Opposition during the Addis Ababa Peace talk, instead of their former chairman -2015 31 .This is where President Kiir appointed Taban Deng Gai as the successor to his boss Riek Machar. Thus, this is how ADR can work because what had been agreed cannot be abrogated because of one person. Alternative

30 www.lGAD Peace Agreement brokered in Addis Ababa between South Sudan Government and Sudan People Liberation Movement/Army and Political detainees plus Other Political Parties (26 th August 2015) 31 South Sudan Civil War (15 th December 2013-9th July 2016) http:www.worldstatesmen.org/South Sudan.html#Southern

28 Dispute Resolution gives the parties principles to be respected by all the groups based on terms of the agreements accepted by the negotiating and mediation teams.

2.1.3 Second South Sudanese Civil War The second South Sudanese Civil War was a conflict from 2013-2016 between the central South Sudanese government and the Sudan People's Liberation Army in-Opposition. It was largely a continuation of the First Southern Sudanese Divisions of 1991-2002.Although it originated in Juba City, the civil war spread to Greater Upper Nile Region and some parts of Bhar el Ghazal Region. It lasted for 25 years, it is considered to be one of the longest civil wars on record of South Sudan as a State before and after independence although the regional and international community's do not acknowledges 1991 when Dr.Riek Machar defected from the movement for the first time, but the native remembered the 1991 Nasir Declaration as the worst time for the people of South Sudan.

Roughly more than IO thousand people died as result of war, looming hunger and diseases caused by the conflict. An estimated four million people in South Sudan were displaced at least once (and often repeatly) during the war. The civilian deaths toll was one of the highest of any war since civil war was marked by a large number of human rights violations. These include properties looting, rampant displacement of people and mass killings among others. The conflict officially first ended with the signing of a peace agreement in 2013 in Addis Ababa Ethiopia with all the parties involved into conflict shared the powers basically on the terms of the agreement. That is another background of armed conflict resolution mechanisms in South Sudan.

The other causes of the second civil war in South Sudan were poor strategy of some politicians as they wanted to get sh01i way to power like what Dr.Riek Machar did in 1991-20 I 3 and in 2016.It is only one man interest that had been engineering a lot of coup attempts to the Government of South Sudan since before and after independence, but his over ambitious will not allow him to get power in this state instead for him to form a Political Party of his own and launch campaigns to know his political status nationwide if he is assuming to be most popular than others.

Very many politicians refuses to form their own parties and remain in SPLM as the ruling Party and claims that why do we leave the SPLM as the only party that had liberated the people of

29 South Sudan. To me although SPLM is well known Political Party ,we cannot let our people dies because of SPLM Party as historical paiiy one would rather go and form another political party provided that you are South Sudanese by nationality and our constitution talk about Multiparty.

In this case those of Dr.Riek Machar Teny and Pagan Amuom Okech plus the rest of their political associates who were very influential and prominent politicians in the South Sudan political arena, would have borrowed the Kenyan politics which I think is the best because they used to form political parties alliances for example in 2002 the former President Mwai Kibaki with the rest of the Kenyan prominent politicians of Hon.Riala Odinga now the main challenging opposition leader was associated himself with former President Kibaki who was presidential candidate ai1d the rest in their political competition with the former President H.E.Daniel Arab Moi who was in support ofUhuru Kenyatta who had contested for Presidency ,but they could not made it because of the coalition of the National Rainbow Alliances which was formed in 2002 that had defeated the former regime and its alliances under KANU Kenyan African National Union that brought the country to independence in 1963 under the late Jumbo Kenyatta the father of the current Kenyan President. Again the formed so many other alliances of JOBILEE and CORD now the rival measure political alliances in Kenya in 2012-2017,which is good instead to remain in the same political party of which if you did not get the chance, .you opted to cause violent and claimed that there is no political correctness in the country like the messes that caused untold deaths to the people of South Sudan erupted within the Ruling Party SPLM for power struggle on question of who was to be Party Flag Bear in the SPLM Third National Convention which was supposed to be conducted in 2013 and the general elections which was also to be conducted in 2015 April that was interrupted by the current crisis.

If the like of Dr.Riek Machar former First Deputy SPLM Chairperson, Pagan Amuom Okech former Secretary General SPLM and Madam Rebecca Nyandeng Garang were not contended with the ways and manner in which those of current SPLM Chairperson and President at the same time with his associates were not good with their political opinions they would have had come up with their clear political agendas of either forming their own Political Parties or the remain in the same SPLM Party and denounced violence as I stated above.Although,SPLM as historical party according to its political and historical backgrounds, we cannot make it as the stepping stone and scapegoat where one caused problem and says where do we go without

30 SPLM as our mother party ,yet some people are killings the people of South Sudan desperately for power struggles which is not good.

That is my humble opinion and analysis on the situation caused by our politicians for their own benefits instead for the welfare of the South Sudanese people.Myself,the one researching this thesis, I am also the member of the SPLM and I am also the delegate in 2008 SPLM Second National Convention at the same time including the 1st SPLM Extra Ordinary National Convention held in Juba 2016,for the incorporation of both twins Peace Agreements of Arusha and Addis Ababa under auspices of IGAD and Chama Cha Mapinduzi of Tanzania.So,! don't give my op11110n as a mere South Sudanese citizen or a researcher, I gave my opinion and concerns as a party member.

According to this chapter two as it is talking about the historical backgrounds of the causes of the South Sudan armed conflict that escalated into rebellion and that causes mistrust and misunderstanding amongst the people of South Sudan needed clear explanations as I did in this thesis as it dwells much on the root causes of the crisis and the factors or circumstances surroundings it.Though,both two agreements of Arusha and Addis Ababa talks much about the terms of all these agreements still there are some of the factions that don't comply with the terms of the agreements and they are continuing with their slogans of regime change that will not bring lasting peace to the people of South Sudan and to the whole country.

Whenever the genesis of the problem has been discovered, the one thing remain is to come up with the solution to that pmiicular problem instead to remain in an unchangeable position as some of the people who were party to the problem remain oppositions and demanding on unacceptable things such as both of Dr.Riek Machar, Dr.Lam Akol Ajawein,Joseph Bangazi Bagasoro the former Governor of Western Equatoria State and Pagan Amuom plus the rest of their colleagues are campaigning outside South Sudan for the Country to be put under UN truest ship which is really impossible on the side of South Sudan Government and on the side of South Sudanese citizens

However, although the implementation of the two agreements is seems to be very slow according to the opposition opinions, then the principles of the very agreements that gave the parties shares in the Government of National Unity (TGoNU) that stated clearly the ratios of the power sharing

31 among them. The oppositions would have boycotting the agreements before it implementation or otherwise they parties may go back to the table for renegotiation and if not the mediation team may take the responsibility of telling them that if the oppositions are not contended with the terms of the two twins agreements which they were all signatories, then the final word according to my opinion is that, let them prepare themselves and waits for general elections that is going to be conducted in 2018. That is the last resort I have seen instead for them to destroys the reputation of their own country for the sake of their own political interests.

After knowing the historical backgrounds of the armed conflict, there is need to find out the means of both conflicting parties to come again as one people from the same nation instead for the groups to stay parallel they have to discusses their differences as they did in Addis Ababa and in Arusha. There is no where all of you agreed on certain points and the paiiies still have no good interactions among themselves, the South Sudanese parties to the conflict remains with each groups maintaining it political opposition to the other.

The good thing that I have heard the president did last time in Juba, is that the formation of the Reconciliation Committee headed by the prominent former presidents of the then Southern Sudan High Executive Council which was led by both Abie! Alier Kuac for the first time and again led by Rtd Gen.Joseph Lagu Yang before the formation of the Ruling Paiiy SPLM in 1983 up date. The formation of this body will pave the way forward to the people and citizens of South Sudan and this is where the people of South Sudan will come to know who are not in need of peace to prevail in this country.

Reconciliation as the one of the principles of the Alternative Dispute Resolution can be used as the last means or mechanism that people know where the peace will work and dialoguing has to be the medicine that will heal the wounds of the causes of the conflict. It needs each and every party to the conflict to have aired out their heat of passions that led to the escalations of the conflict or violence. All paiiies are allow to presents their grievances to the committee concern although the methods and modalities of the reconciliation do not relate to that one of negotiation and mediation where the parties to the armed conflict after the agreement may share the powers base on the terms of the agreements. Reconciliation does not allow parties to do that. it gives them free and fair political atmosphere without any other groups stays in doubt like during the time of war.

32 CHAPTER THREE

2.1.4. Legal framework of ADR and the Types of ADR Legal framework can be the basic ideas or principles that something is bases on legal agreement. For instance, negotiation, mediation and reconciliation can be done basically on legal grounds that mean all parties to the armed conflict must operate within a legal framework of the agreement. When the pmiies sign an agreement like the Addis-Ababa Agreement which was signed in 2015 .It was signed to create smooth political environment of South Sudan to make it stable and foster for the development of the nation. According to article 36 clause (2) and paragraphs (a) (b) of the Transitional Constitution of

Republic of South Sudan, 2011 as amended32 .

Stipulated that all level of government shall:

(a) promote and consolidate peace and create a secure and stable political environment for socio-economic development; (b) initiate a comprehensive process of national reconciliation and healing that shall promote national harmony, unity and peaceful co-existence among the people of South Sudan.

In relation to Article 36 of the Transitional Constitution of the Republic of South Sudan above ,briefly let me bring in the short definition of the term "dispute" is indispensable part of societal interaction since the inception of human settlement. If it is not well taken and resolved early, dispute between two individuals will grow up and become threat to national security, peace and stability, which are the basis parameter to measure the development of a nation. With the objective of settling dispute in a more justifiable manner, national governments and the constitutions of most nations establish institutions; judiciary organs of the government. It the natural mandate of courts of law to ente1iain disputes. Other than judiciary arm of the government the necessity of establishing other tribunals with power has been felt long ago. Within the executive arm of government,quasi-judicial tribunals named otherwise as administrative tribunals have been establish to settle disputes. Comis and administrative tribunal are public institutions established to resolve disputes.

32 Article 36 (2) (a) (b) of the Transitional Constitution of the Republic of South Sudan (2011) as Amended

33 But before the establishment of courts and administrative tribunals, and even after their establishment, there have been other private tribunals by which the society is trying to settle disputes. These are called Alternative Dispute Resolution (ADR) mechanisms.ADR doesn ·t refer a single kind of mechanism, but it is a generic name to refer dispute settlement mechanisms other than court and administrative tribunals. Arbitration, Reconciliation, Mediation and Mini-Trial are some of them which are referred as ADR.

Definition; What is Alternative Dispute Resolution?

ADR is composed of different words: Alternative, Dispute and Resolution. Thus to clearly understand or define the phrase it is paramount important to understand each word separately thereof. The word Alternative, as to the definition in 6th edition of Oxford Advanced Learners Dictionary, refers "a thing that you can choose to or have out of two or more possibilities."

The term "resolution" define in Oxford Law Dictionary to means a decision reached by a majority of the members at any forum either through political means or at any social gathering to find the mechanism of resolving the dispute arising.

The research is all about the roles and mechanisms provided by ADR 111 the arms conflict situations in South Sudan since before and after independence.

The area of this research is to examine the means that ADR helps to bring peace to the parties involved in the armed conflict. And also find out whether ADR as a mechanism of resolving disputes can be the only way to bring the lasting peace if the parties to the conflict have accepted negotiation.

The reason why I am researching in this area is that to give me knowledge that may later on help me to settle some cases that need this method. On the other hand, I need to know more about this course unit as I may soon simply become part of those people who can helps people who don·t have knowledge in this field. And teaches them the importance of ADR in conflict resolution.

Basically on the nature of the chapter two in this thesis, there are so many legal frameworks with regard to Alternative Dispute Resolution as mechanism of solving problems arising such as the Transitional Constitution of the Republic of South Sudan can be apply as stated before. On the other hand, both twins' agreements of Addis Ababa Peace Accord led by IGAD on the

34 Resolution on the South Sudan Conflict 2013-2015 and the Arusha Peace Agreement under auspices of Chama Cha Mapinduzi in Tanzania on the Reunification of the SPLM Intra-Party signed 21st January 2015.

It is one of the legal frameworks 111 relation to ADR that the IGAD Addis Ababa Peace Agreement provided in (Chapter V) for Truth, Reconciliation and Healing: Recognizing the need for national reconciliation and healing, the TGoNU will establish an independent national commission for truth, reconciliation and healing, which will establish an accurate an impartial historical record of human rights violations, abuses of power committed by state and non-state actors, indentify victims and perpetrators, recommend legal and institutional reforms and lead efforts to facilitate local and national reconciliation. Commissioners will be appointed from South Sudan and other African states.

In the same Chapter (V) of the Addis Ababa Peace Agreement led by IGAD on the Resolution of Conflict in South Sudan. Provided for the Justice and accountability to prevail: The Agreement determined to end impunity; the TGoNU, the African Union and the United Nations will jointly establish an independent hybrid court, judicial institution, to be known as the Hybrid Court for South Sudan (HCSS) tlu·ough a Memorandum of Understanding (MoU) with the TGoNU, the African Union and the United Nations. It is Alternative Dispute Resolution that has provided this legal framework as a result of the negotiation without ADR the parties to the agreement would have not reached this stage.

The HCSS will have jurisdiction with respect to genocide. crime against humanity. 'vVar crimes and other serious crimes under international law, committed since 15 th December 2013 .Judges and staff of HCSS will be selected and appoint by the Chairperson of the African Union and the Secretary-General of the United Nations. The Chairperson of the African union and the Secretary General of the United Nations shall determine the location of the HCSS. Lastly, more explanation about the legal framework of ADR is going to be more elaborates in the types of Alternative Dispute Resolution.

There were many legal frameworks that prompted the parties to the agreements to sign the peace according to the regional and international bodies on the resolutions of the armed conflict.

35 2.1.5 Types of ADR

ADR is divided into four types as follows:

Negotiation, Mediation, Reconciliation and Arbitration.

In order to find solution to any problem like the South Sudan crisis, it is better first to find and assess to what were the root causes of the problem? In this case the question is what is the genesis in the SPLM, because the current fighting in the country was erupted within the ranks and files of the ruling party Sudan People liberation Movement in 2013.In reference ADR has become the popular mode of settlement as its types are being mentioned above in relation to IGAD-led peace process for South Sudan which brought all the parties to conflict on board to negotiated in good faith and the mediation team were very keen enough on how these groups opposing each other comes together and put their own country to normalcy when the peace accord is signed.

The war is often characterized as a fight between the central government expanding and dominating peoples of periphery, raising allegations of undemocratic system of governance. Many powers were conferred upon the chairman of the paiiy and at the same time president of the Republic. The members of SPLM National Liberation Council that is the body entrusted with powers of discussing party issues when there is mistrust within or amongst the members of the party. They have attempted to regulate and exploit the undeveloped system in the Sudan People

Liberation Movement33 . This act annoyed some of high prominence members of the party and hence fighting started that led to Addis Ababa peace accord.

Some sources describe the conflict as "the deep-seated divisions within the SPLM Leadership,exarcerbated by dictatorial tendencies of the SPLM Chairman, and the dysfunctional SPLM structures from national to local levels were likely to create instability in the party and in the country" that is according to what the opposition leader said. This division led to violence, and eventually to the civil war where Dr.Riek Machar exploited the untrained youths called white army from his tribe mate Nuer that he used to fulfilled his political interest through them to fight the government.

33 Seymour;Lee J.M.p.200, "Rev0f Douglas Johnson,The Root Causes of South Sudan's Civil (15th December 2015 )Wars"(httsp://web.africa.ufl.edu/asg/v7/v7/i2a29.htm),African Studies Quarterly? (1),retrieved 10 April 2007)

36 When the SPLM governed Southern Sudan as an Autonomous Government as CPA stipulated in 2005 agreement, they administered the Southern Sudan states separately even when Sudan was one. The Southern Sudan had its own administration from the Government of the then Sudan this where Dr.Riek Machar was appointed vice president of Government of the then Southern Sudan until the time of referendum when South Sudan declared a nation of its own. Before Sudan got her independence, Southern Sudan was held to be more similar to the other east-African colonies -Kenya, Tanganyika now Tanzania and Uganda- while northern Sudan was more similar to Arabic-speaking Countries of Egypt and the rest, although both of them were under Sudan Government after independence from British 1956 their relationships were not good. Northern Arabs were prevented from holding positions of power in the south with its African traditions, and trade was discouraged between the two areas.However.in 2005, all Sudanese come together as people of the same nation according to the CPA I am driving at the Alternative Dispute Resolution to be means of settlement in Southern Sudan and Republic of Sudan.

The second war was partially about natural resources between the South Sudan Government and the Rebels of Dr.Riek Machar because was saying that he is hailing from the oil rich State of Unity and he was also campaigning seriously that if he get power significantly oil fields and thus significant foreign interests (the oil revenue is privatized to Western interests as in Nigeria) that how he propagated the war .The government wanted to control these resources because they are situated on the edge of the responsibility of the whole Republic of South Sudan. Oil revenue makes up about 980% of South Sudan's export earnings, and contributes to the development of the country.

This had also been a significant amount of death from warring tribes in the South Sudan. Most of the conflict had been between Nuer and Dinka but other ethnic groups had also been involved. These tribal conflicts had remained after independence. For example, in January 2012, 3,000 Murle people were massacred by the Nuer armed militias this because there were some politicians who mobilized their tribes mates to achieved their political interests three examples of Dr.Riek Machar who is a Nuer by tribe, David Yau Yau a Murie by tribe and late George Athor Deng a Dinka by tribe.so,all these people I have mentioned here were the very people who exploited the illiteracy of our people to achieved their political interests and many others.Hence,all these issues were settled through ADR as method of bringing disputed parties

37 on board for settlement like Agreement between Government of South Sudan in 2010-20 I 2and

David Yau Yau led (SSDMCF) South Sudan Democratic Movement /Army Copra Faction34 .

The civil war caused by Dr.Riek Machar ended with the Addis Ababa Agreement. Part of the agreement gave South Sudan Government and all the rebel factions percentages each based on the terms and conditions of the agreement. That is one of the roles of armed conflict resolution mechanism to bring peace between the warring parties involved in the armed conflict through negotiation, mediation reconciliation as well as arbitration.

2.1.6 Civil war

2.1.7 Before 2013

2.2 Addis Ababa Agreement ended The Addis Ababa Accords were incorporated in the Constitution of South Sudan; the violation of the agreement led to the second civil war in South Sudan and that is one of the finding led to the continuation of armed conflicts in South Sudan.

The first violations occurred when Former First Vice President Dr.Riek Machar forces attempted coup and to take control of oil fields straddling the Rebels and Government forces along the border of former Unity. Oil has been discovered in in 1978 Southern Sudan. the Unity oilfields in 1980 and Adar oilfields in 1981 and in Heglig in 1982.Access to the oil fields meant significant economic benefit to whoever controlled then/

The rebel fundamentalists led by Dr.Riek Machar had been discontented with the Addis Ababa Agreement, which gave relative percentages to the minorities parties against majority South Sudanese Government groups. The fundamentalists continued to grow in power when they were given their shares with separate army before integration. In July 2016 after clashes Dr.Riek

Machar declared all his resumption of rebellion, terminating his loyalty to TGoNU35 .

34 www.South Sudan Democratic Movement Copra Faction of Gen.David Yau Yau Peace Agreement signed with Government of South Sudan in Nairobi Kenya (2010-2012) under auspice of Catholic Church of South Sudan led by Archbishop of Juba Pa ride Ta ban 35 www.Addis Ababa Accord between South Sudan Government and Rebel SPLM 10 in (17 August 2015)

38 2.2.1 Sudan People's Liberation Army (SPLA) The Sudan People's Liberation Army (SPLA) was founded in 1983 as a rebel group, to reestablish an autonomous Southern Sudan by fighting against the central government in Sudan. While based in Southern Sudan, it identified as a movement for all oppressed Sudanese citizens, and was led by Dr.John Garang de Mabior. Initially, the SPLA campaigned for a "United Sudan", criticizing the central government for policies that were leading to national "disintegration" .Therefore,I am showing that named of SPLA that were maintained even after independence of South Sudan because it is the SPLA/SPLM that brought the freedom to the people of South Sudan.

2.2.2 The 2013-2016 Coup Attempts On 15 December 2013, senior military officers led by Dr.Riek Machar former Vice President Gen.Taban Deng Gai former Governor of Unity, Gen.Garwich Dual, Gen.Kong Chuol. Gen.Peter Gadet and many others mounted a coup. Among the first acts of the new rebel government was to suspend the Transitional Constitution of The Republic of South Sudan 2011 as amended, rescind the decree declaring South Sudan Federal State if they were to succeeded.' intent to increases states from 10 to 21 states, and disband Salva Kiir groups from politics. However, the '' 15 December 2013 did not materialized as they wished the parties resorted back to negotiation for peaceful solution to the problem.36 A groups of member transitional military council was named, chaired by Gen.Dr.Riek Machar in 2013.In -known as the "SPLM/SPLM In-Opposition"-the military council appointed an interim civilian cabinet, headed by the same Dr.Riek Machar according to their own plans. They had suggested that chairman Machar has to remain there when they are going to capture the whole of South Sudan or when the agreement is sign between the rebels and the government in Juba. They had also proposed Elections were going to be held in April 2015, and a transitional military council turned over power to a civilian goverm11ent as promised. The military government was headed by Dr.Riek Machar Party parallel in the bush with his governors also appointed by him from 2013 to2015 until when Addis Ababa peace accord was signed37 .

36 www.South Sudan Peace Agreement Signed in Addis Ababa (26th August 2015) under auspice of IGAD 37 http://www.Dr.Riek Machar Defection in Juba South Sudan (i\8th and 9th July,2016-2017)

39 2.2.3 Negotiation and escalation In January 2013, Salva Kiir government coalition began peace negotiations with the Sudan People' Liberation Army (SPLA In-Opposition) led by Dr.Riek Machar. In that the SPLA In­ Opposition and a number of South Sudanese political parties met in Ethiopia and agreed to the "Addis Ababa Peace Negotiation" which made declaration, that called for abolishing military confrontations and convening a peace conference. In 2015, the South Sudan Government and the SPLM/SPLA In-Opposition agreed on a peace plan calling for the abolition of military pacts with Uganda, and an end to the state of emergency in Greater Upper Nile Region, and a cease­ fire has to be observed. However during this period the second civil war intensified in lethality and the national economy continued to deteriorate. When prices of basics goods were increased in 2014-2016,even now in 2017 . When former First Vice President refused not to abide by a peace led by (IGAD) and the Sudan People's Liberation SPLM/Army 111 Government(SSPLM/PLA) in July 2016 the factions of SPPLMSPLA divided themselves and eventually Dr.Riek Machar left the government. The new government was formed consisted essentially of the SPLM/SPLA In-Opposition and the ruling Party SPLM in Government (SPLM IG) where Gen.Taban Deng Gai succeeded his boss Dr.Riek Machar in post of First Vice President designated by the agreement. 2.2 .4 Revolutionary Command Council for SPLM/SPLA In-Opposition Early January 2014, however, military officers under then former First Vice President, with SPLM In-Opposition (SPM IO) instigation and support, were planning to replaced their Chairman Riek Machar but their Military Government with the Revolutionary Command Council for SPLM/SPLA IN-Opposition (SPLM/SPLA IO), a military high command of more members military officers (reduced in 2015) assisted by a civilian forces of White Army recruits and joined the government in Juba. 2.3 Criminal Act of 2013-2016 In 2015-2016, the African Union in collaboration with Human Rights Watch formed a board of inquiry to investigated the gross of human rights abuses in South Sudan on both side of government and the rebels. The AU Commission on Human Rights Violations proposed the Hybrid Court to settle cases of violation in South Sudan. The criminal Act of (2013-2016 ), the institution has not yet been put in place or instituted. Although the institution is not yet officially open, there shall be possibility in future application of the laws in the South Sudan.

40 2.3.lConduct of the war: (2013-2016) The South Sudan Government was in control of so many places including the whole of large areas of Equatoria, Bahr al-Ghazal, and Upper Nile States. The rebels controlled a number of the small towns and County Headquarters including Pagak the Headquaiier of SPLM/SPLA IO led by Dr.Riek Machar before Taban Deng Gai become Machar successor in Juba.Panyjar, and Akobo were under their control. An informal cease-fire in May broke down in early (2013-.In 2014 ), a government offensive seized some areas controlled by IO and later captured the town of

Nasir that was the first SPLA IO headquarters38. It is estimated that as many as 200,000 South Sudanese children and women have been mistreated by parties to the conflict in towns and villages during the war. Both the government regular armed forces and notorious militia (known as Sudan People Liberation Army In­ opposition, SPLA IO) were used to attack and raid villages in some parts of Upper Nile States39 .

2.3.2 SPLM dissension The first of its kind is dated back to 1991 and secondly in December 2013, internal dissension among the rebels led opponent of Colonel Garang's leadership of the SPLA/SPLM between the factions of Dr.Riek Machar that later formed the so-called Nasir faction of the SPLA rebel army. The attempt to overthrow Garang was led by current rebel leader Dr.Riek Machar who was former vice president of the Republic of South Sudan and former Minister of Foreign Affairs in the then Government of National Unity of the Sudan before South Sudan seceded from Khartoum Dr.Lam Ako! who is the main opposition leader of the Sudan People's l ,iberation Movement for Democratic Change (SPLM-DC).In November 1991, SPLA-Nasir carried out the Bor massacre, killing an estimated 2000 civilians. In September 1992, William Nyuon Beny formed a second rebel faction, and in February 1993, Kerbino Kwanyin Bol formed a third rebel faction. On 5 April (1993), the three dissident rebel factions announced a coalition of their groups called SPLA United at a press conference in Nairobi, Kenya. Yet Sudan's national governments have a long history of using proxies in Southern Sudan, and the North-South border

38 Karl R.DeRouen and Uk Hee.civil wars of the world: World Warll 1.ABC-CLIO.p.744. 39 Sabit A.Alley,War and Genocide in the Sudan {http://web.archive.org/web/20051221045218/http://www.iabolish.com/today/features/sudan/overviewl.htm},i Abolish.Paper originally delivered at "The 19th Annual Holocaust and Genocide Program:Learning Through Expereince"hosted by the Institute for Holocaust and Genocide Studies of Raritan Valley College in the Jersey on 17 March 2001.Archived 21 December 2005 On the Internet Archive. Accessed 10 April 2007. 41 areas, to fight their wars and preserve their regular forces. These militias were recruited locally. and with covert ties to the national government. Many of the Khartoum-aligned groups were created and then armed by the NIF in a deliberate 'divide and rule' strategy40. After 1991, the factions clashed occasionally and thus, the rebels lost much of their credibility with the West. As mentioned above, that was how the dissension of the SPLM/SPLA as groups divided themselves before and after independence of South Sudan up to date and they called for the negotiation as the means to settle their disputes. Therefore, what is lacking is that, there are those who do not respects the terms and conditions of so many agreements and reconciliations made many times like Dr.Riek Machar and Dr.Lam Ako! who can signed agreement today but tomorrow violated it.

2.3.3 Sudanese alignments with South Sudan Rebels before and after Independence Then, in 2013-2016, the Sudanese government supported Rebels of Dr.Riek Machar. This changed Government of South Sudan attitudes toward the country. Salva Kiir Mayardit's administration stopped good relationship Sudan and the both countries traded accusations against each other of harboring rebels along their undemarcated borders. No trades activities and investments in between the two countries. They accused each other proxy war and military supplied to their rebels both sides. Military trainings and financial supports.

3.1 Sudan People Liberation Army and Sudan People Liberation in Government (SPLA/SPLM) alignments In reference to SPLM/SPLA as a gorilla in 1995 before Comprehensive Peace Agreement of 2005, the opposition in the north united with parties from the South to create a coalition of opposition parties called the National Democratic Alliance. This development opened a northeastern front to the civil war, making it more than before a center-periphery rather than simply a north-south conflict. The SPLA, DUP, and Umma Parties were the key groups forming the NDA, along with several smaller parties and northern ethnic groups. In the same year (1995), Eritrea, Ethiopia and Uganda stepped up their military assistance to the SPLA to the point sending active troops into Sudan. Eritrean and Ethiopian military involvement weakened when the t\VO countries entered a border conflict in 1998.Uganda's support \\eakened

4° Claire IVlc Envoy and Emile Lebrun, uncertain Future: Armed Violence in South Sudan,HSBA Working Paper No(.20,April 2010,p.13)

42 when it shifted its attention to the conflict in the Democratic Republic of Congo 11 • By 1997, seven groups in the government camp, led by former lieutenant Gen. Riek Machar, signed the Khartoum Peace Agreement with the NIF, thereby forming the largely symbolic South Sudan Defense Forces (SSDF) umbrella. Also in 1997, the government signed the Nuba Mountains, and Fashoda agreements with rebel factions. These included the Khartoum, agreements that ended military conflict between the government and the significant rebel factions. Many of those leaders then moved to Khartoum where they assumed marginal roles in the central government, or collaborated with the government in military engagements against the SPLA.These three agreements paralleled the terms and conditions of the IGAD agreement, calling for a degree of Autonomy for the south and the right of self-determination. In July 2000, the Libyan/Egyptian Joint Initiative on the Sudan was mooted, calling for the establishment of an interim government, power-sharing, constitutional reform, and new elections. Southern critics objected to the joint initiative because it neglected to address issues of the relationship between religion and the state and failed to mention the right of self­ determination. It is unclear to what extent this initiative will have a significant impact on the search for peace, as some critics view it as more aimed at a resolution among northern political parties and protecting the perceived security interests of Egypt in favour of the uni Ly of the Sudan.

3.2.1 Peace agreement (CPA) Comprehensive Peace Agreement Peace talks between the southern rebels and the government made substantial progress in 2003 and early 2004, although skirmishes in parts of the south continued. A Comprehensive Peace Agreement was signed on 9 January 2005 in Nairobi in the town of Naivasha. This marked the role of armed conflict resolution mechanisms in the South Sudan and Sudan longest civil wars without this agreement there would had been no peace in Sudan at all and there would have been no Republic of South Sudan that had attained its independence in 2011 because of Comprehensive Peace Agreement between the of Sudan and rebel Sudan People Liberation Movement in the then Southern Sudan.

41 Brain Raftopoulos and Karin Alexander (2006).Peace in the balance: the crisis in the South Sudan. African Minds.p.19

43 3.2.2 The terms of the peace treaty were 42:

❖ The south had autonomy for six years, followed by a referendum on independence (the Southern Sudanese independence referendum, 2011.

❖ Both sides of the conflict would have merged portions of their armed forces into a 39,000-strong force after six years (the Joint Integrated Units), if the Southern Sudanese independence referendum had turned out against secession.

❖ Oil revenues were divided equally between the government and the SPLA during the six­ year autonomy period.

❖ Jobs were split according to varymg ratios (central administration: 70% to 30%, Abyei/Blue Nile State/Nuba Mountains: 55% to 45%, both in favours of the government).

❖ Islamic Sharia law was applied in the north, while terms of use of Sharia in the south were decided by the elected assembly.

The status of three central and eastern provinces was a point of contention in the negotiation.

3.3 Foreign interventions In 2016, Troikas Countries US, UK,Norway and France proposed military intervention initiated what they called (MPF) Military Protection Forces without the concerns of the government of the Republic of South Sudan. By this time the peace process of the Inter-Government Authority on Development (IGAD) had reached a stalemate. The main purpose had been to bring members of the (SPLM/SPLA) Factions of IO and FDs (especially opposition In-opposition of Riek Machar after 7, 8, 9 July incidence that left Juba conditionally) and went abroad. However, as MPF was avoided on contentious issues, such as blockages by Government of South Sudan as well some of the UN prominent members had observation on it those of China, Russia, Egypt and Venezuela lacked support of proposed Military Intervention, but US did not accepted it and continue with the agenda. By the end of 2016, MPF had not been unable to bring about any agreement between the parties. In 2015, former US. Secretary of State John Kerry was delegated by US former President Barrack Obama to monitored Peace in the South Sudan and its implementation by all the warring parties. His role was to explore the process the prospects that the US could play a useful catalytic role in the search for a just end to the civil war, and enhance humanitarian services deli\ery that

42http://www. iss. co.za/ af/profi Ies/South Sudan/ d arfu r / cpa prov .htm

44 can help reduce the suffering of the South Sudanese people stemming from war related effects. Following an internal outcry, the government of South Sudan agreed with the United Nations and donor nations including the US on a plan called Humanitarians grounds and the government also accepted the proposed forces and the name where changed to protection forces with the mandates agreed by both government and UN (PF), under which some additional of 4.000 strong forces and tons of food was moved into both government and SPLA-held areas of the South Sudan, and widespread starvation was averted. Phase II of humanitarian to cover 2016 was approved by both the government and the SPLA In-Opposition of South Sudan face a 2-year drought and food shortage across the entire country43 . The US,UN,and other donors attempted to mount a coordinated international relief effort in both Rebels held areas and the South Sudan government to prevent a catastrophe.However,due to South Sudan and Rebels of Dr.Riek Machar' human rights abuses and its pro-rebels stance during the fighting , many donors cut much of their aid to the government of South Sudan. In a similar fighting in 2013-2016, the international community again responded to avert mass starvation in the South Sudan. International donors continue to provide large amounts of humanitarian aid to all parts of the South Sudan. The US government's accused South Sudan Government and Rebels led by Dr.Riek Machar of genocide for killing more than ten of thousands and displacement( 4)million civilians in the South Sudan during the civil war since the war erupted in 2013.

4.1 Arms Suppliers South Sudan relied on a variety of countries for its arms supplies because it is an Independence State that is capable of procuring and purchasing any kinds of weapons according to their wish. Following independence, the army was trained and supplied by the China, Russia and Isreal and among other. However, after the 2013-2015 War, relations between South Sudan Government and Troikas Countries of USA, UK, Norway and France were somehow cut off, the groups later influenced the UN Security Council to imposed Arms embargo on South Sudan and threatening the sanctions on the keys players in the war like Dr.Riek Machar on the side of rebel and the side of Government Michael Makuei Lueth the Information Minister and Gen.Paul Malong A wan the

43 www.SPLM Party Reunification Signed in Arusha Tanzania (21st January 2015)

45 SPLA Chief of Staf£44 • From 2013 to 2015, the People Republic of China and Russia sold large numbers of weapons and provided technical assistance and training to South Sudanese Army within and abroad. At this time the army grew from strength that made it capable to defeated Rebels of Riek Machar. Large numbers of tanks, aircraft, and artillery were acquired, and they dominated the army until the late 2016. Relations cooled between the two sides after the failed coup in 2016, and the South Sudan government sought to diversify its suppliers. The Russia continued to supply weapons until 2016, when their suppo1i of elements in South Sudan angered the US government that was under former administration of President Barrack Obama sufficiently to cancel their deals financials assistance to Government of South Sudan45 . The People's Republic of China was the main supplier in the late 2013-201546. Egypt was the most important military partner in the 2014, providing missiles, personnel carriers. and other military hardware. At the same time military cooperation between the two countries was importantly increasingly up to date. U.S.-aligned countries were accused by South Sudan Government; they were one supplying Rebels of Riek Machar in the mid-2013-2016 purposely for regime change plans. The United States began selling ideas in the UN on how to destroyed South Sudan Regionally and Internationally which was opposed by the Eastern Block of China and Russia that led to the blockages of US proposes sanctions on South Sudan in 2016.Meanwhile the rebel SPLA was supplied weapons through or by Eritrea, Ethiopia, and Republic of Sudan. The Israeli Government was also supplied anti-tanks missiles to the Government of South Sudan.

4.2 Child soldiers Armies from all sides enlisted children in their ranks. The Addis Ababa agreement required that child soldiers be demobilized and sent home. The SPLA on the side of Government claimed to have let go 16,000 of its child soldiers between 2015 and 2016.However, international observers (UN and Global Report) have found demobilized children have often been re-recruited by the SPLA.As of 2013, there were between 2,500 and, 5,000 children serving in the SP LA.The

44 www.South Sudan Peace Agreement signed in Addis Ababa {2015) 45 46 www.Addis Ababa Peace Agreement signed between Juba Government and SPLM 10 Rebel of Riek Machar (2015)

46 Rebels of Riek Machar also have promised to demobilize all children by side the end of 2015 but did not managed because of July in incidence of 2016 in Juba that led to Ran away to the bush for the third time. The goal was met and the idea of children being soldiers did not help either side win the war47 . The Nuer White Army were recruited by Dr.Riek Machar to fought the war on his side, a minor participant in the war in the Greater Upper Nile region, consisted largely of armed N uer youths, but it was principally self-organized and often operated autonomously of both elders' authority and the dictates of the major factions. 48

4.3 Borders and Resources: The case of Abyei The area of Abyei comprises oilfields Blocks 1,2,and 4 and remains a subject of contention, despite the fact that oil production in these blocks has been declining since 2000.The boundaries of the Abyei area were to be determined by a commission of five international experts comprising of the Abyei Boundaries Commission (ABC).The Commission presented their report in July 2005,but it was not accepted by the Government of National Unity (GONU).Both sides agreed that the case be decided by an Abyei Arbitration Tribunal sitting at the Permanent Court of Arbitration in the Hague Netherland. The Tribunal rendered its final ruling in July 2009, redrawing the boundaries relative to the original ABC ruling and ceding key oilfields and grazing lands to the North. As of 2012, the more than 2,000 km border between the two countries has not been formally demarcated. Beyond the case of oil, grazing rights and pastures remain a source of contention as Misseria pastoralists have difficulty accessing their traditional grazing lands. So that is one role of ADR as the mechanisms of resolution of the armed conflicts in both South Sudan and Sudan. And the used of Arbitration as the method of solving disputes which the part of Alternative Dispute Resolution is. Without this means the two states would have fought each other. 49 However, as stated above, Abyei was supposed to conduct the Referendum with the then Southern Sudan, the exercise is delays a bit because of some other reasons known by both two

47 11 SPLA to demobilizes all child soldiers by the end of the year" (http://www.sudantribune.com/SPLA-to­ demobolize-all-child,36125) .Sudan Tribune. 48 Young,John (June 2007). 11The White Army:An Introduction and Overview" (http://www.smallarmssurveysudan.org/pdfs/HSBA-SWP-5-White-Army.pdf) .Small Arms Survey.Retrieved 30 December. 49 http://www.Abyei Court of Arbitration at Hague in Netherland, Southern Sudan V Sudan {2009)

47 governments of South Sudan and Sudan and the negotiations are still under ways before the international community's on the final status of this area either to be am1ex to South Sudan or via Sudan. The two countries are currently sharing the same equal status until the day when the inhabitants take the decision whether the 9 Ngok Dinka Chiefdoms remain in North Sudan or the will go to South Sudan as CPA provided in 2005.

CHAPTER FOUR 5.1 Application of ADR An application is a particular use of something such as ADR is applicable in the situation where the parties are at odd that lead to fighting like the case of South Sudan. This is where ADR can be applying as the means to bring together the conflicting parties to that particular dispute. It is also ADR to allow people with their grievances to air out the areas where the conflicting groups misunderstood themselves by negotiation and mediation with both parties to come along with their delegation team led by their chief negotiators and the mediation team to facilitate the peace processes.

The application of ADR in South Sudan crises had become the measure possible way that the people of South Sudan trusted each because there were so many cases settled by this method since before and after independent. There are so many examples of the cases that were settled through ADR. Here are the numbers of all the disputes happened in South Sudan and were solved by the application of ADR as follows:

The SPLM /SPLA as a ruling pmiy passed through what I called six stages of turbulence grO\vth from its formation in 1983 with immediate start of power struggle which later after nine years of forceful union emerged into 1991 famous split into SPLM Nasir led by former vice president Dr.Riek Machar, SPLM Torit now the main stream ruling party in Juba led by late Dr.John Garang de Mabior succeeded by Gen.Salva Kiir Mayardit now the current SPLM Chairman President at the same time and SPLM/A United led by Dr.Lam Ako! respectively. I brought these examples to show how the genesis of the current problems originated in South Sudan.

As I mentioned the stages on how problems happened in South Sudan, below are cases where ADR applied as stated above. The first reunification agreement in 2002 between the faction of Dr.Riek Machar and that of

48 Dr.John Garang was the beginning of the application of ADR in South Sudan conflict, again the power struggle rejuvenated in 2004 with another famous Rumbek Leadership Conference where the looming disaster was materially resolved before it was out of hand between late Dr.John Garang and his Successor Gen.Salva Kiir who is now the current president of Republic of South

Sudan. This is where I realize the application of ADR and its effectiveness in solving disputes50 . After exactly four years down the line in 2008, the same SPLM faced another second power struggle during the SPLM second National Convention which was held in Juba led to the compromise by maintaining the status quo of the SPLM leadership in totality. This case was settled very fast it did not caused big problem as the party members intervened and brought all the members together and each of the contested members maintained to their positions. Chairman Salva Kiir Mayardit, Riek Machar, Wani Igga and Pagan Amuom were all maintained in their respective positions in the paiiy.

In 2010, SPLM again continued to inherit power struggle syndrome with candidates, nominations to stand general elections throughout the country. The partial mishandling of the nomination procedures allowed others to have rejected the elections results and create or join their rebellions including late George Athor Deng from former Jonglei State who was a candidate for Governorship, late James Gatluak Gai from former Unity State who was supporter to wife of Dr.Riek Machar by name candidate for the post of GoYernorship rivaling the then incumbent governor who is now the current first vice president of South Sudan Gen.Taban Deng Gai and David Yau Yau from Murle defected because he had lost election in his constituency in Gumuruk Pibor County.

With all these disputed groups mentioned, their cases were resolved through negotiations and mediations and hence ,this where applications of ADR can be necessary that led to 2013 agreement between the government of South Sudan and David Yau Yau named Copra Factions in Nairobi that granted Greater Pibor Administrative Area(GPAA).David Yau Yau appointed as Administrator of Pibor basically on the terms and conditions of the agreement under auspices of Paride Taban Archbishop Chatholic Church of South Sudan with the creation of Pibor

50 http://www.southern Sudan in Rumbek 2004, between late former SPLM Chairman Dr. John Garang de Mabior and current SPLM Chairman and President Republic of South Sudan Gen.Salva Kiir Mayard it

49 Administrative Area to be under presidency until the time when the presidential decree come out for the promotion of Greater Pibor Administrative Area to Boma State now51 .

In December 2013, the time bomb blast with full gear! This came at a time when all the activities for the ruling party to organize itself according to the party's constitution and basic rules has elapsed because the SPLM Third National Convention was to be convinced in Juba 2013 but it failed due to some other circumstances known by the party leadership. Eventually on December 6, 2013, the SPLM experienced the split like that one of 1991 where the factions of some of the members of the SPLM at the highest body at Political Bureau and National Liberation Council levels led by Riek Machar held a meeting separately apart from the rest of the party members and without notification to the office of the Chairman. Dr.Riek Machar went on with his groups with their first press conference where they highlighted issues facing SPLM and the country at large. In that press this was the beginning of violence the statement the group stated that the crisis reached boiling point in March 2013 when General Salva Kiir cancelled the meeting of the National Liberation Council; issued a Presidential Decree withdrawing the delegated powers from his Vice President and First Deputy Chairman. With these steps. that was how problem engineered by the parties who are principals of both the Addis Ababa Agreement August 2015 and Arusha Agreement that talk of SPLM Reunification of the party therefore,that all about the application of ADR which is the main method and popular in such situations as I stated.

After all the chronically finding of the mess in the SPLM as numerated above, the African countries with shared history of liberation struggle namely: Ethiopia, South Africa and Tanzania thought wise to nurse the ailing SPLM party for the interest of peace and security of South Sudanese and the region for the that matter to settle the disputes amongst three parties to the conflict. This regional meeting gave birth to the SPLM -intraparty dialogue in Arusha. Tanzania under auspices of the ruling Chama Cha Mapiduzi that all about ADR application. It is the ADR as a method and means of settlement in armed conflict situations is the one granted the strategic objective of the Arusha SPLM reunification agreement that allowed parties to conflict to accept having failed the people of South Sudan. The parties came up with the legal

51 www.South Sudan Democratic Movement Copra Faction of David Peace Agreement signed with South Sudan Government in Nairobi (2010-2012)

50 framework agreement that created a road to help move the IGAD peace process without delay since they had eventually become one SPLM family as per the agreement. According to this Arusha agreement, it has come up with the focuses on well -defined 44 reforms broadly classified as political, organizational, and leadership matters based on the terms and conditions of the agreement as the parties signed. The agreement also stipulated that SPLM politically commits to implement cessation of hostilities (CoH) agreement and all the additional protocols signed in Addis Ababa, promise to apologize to the South Sudanese for failing their liberation aspirations and instead assaulted them52 .

In this Arusha agreement it had shown in fact the loss of political ideological and paved the way forward on how the country come to know the direction and the parties recognized the ADR to be the only means to settles cases that does not make parties doubt because ADR does not allow the other party to take advantages of others.Therefore,I honestly believe that the return of the SPLM political ideology is the success of the application of ADR. Whenever one achieve something based on the rectification of the previous and current errors and return to the vision and project of state and nation building for provision of human security, service delivery, protection of territorial integrity, economic development and physical development and amongst others.

In the negotiation and mediation as the types of ADR, the application of the two types is a major one that will resolve the national crisis and achieve a transition to sustainable peace and stable democracy. The section 7 on political issues of the Arusha agreement is to "redefine its political ideological direction, developed path, the nature of it democracy, system of governance and the nature of society and state it inspire to build. This is a very big responsibility; it must be implemented in order to salvage the country from collapse along ethnic lines.

In the other words, both peace processes in Arusha SPLM intra-party dialogue and the IGAD led peace process must simultaneously focus on ensuring a functional application of ADR in the armed conflict like in the case of South Sudan. The application of ADR help the conflicting parties to discusses and agreed the doctrine of separation of powers both in the SPLM party where problem started and the government with designed flexible practice of internal democracy.

52 www.South Sudan Arusha Agreement for Reunification of the SPLM Party in Tanzania under auspices of Chama Cha Mapinduzi in( 21st January 2015)

51 However, the primary focus of Alternative Dispute Resolution should be that after the agreement conflicting groups both the Government and the opposition ensure three arms of government not only enhance and consolidate its individual functional capacity but also be able to exercise its constitutional mandates of checking the other arms per the agreement.

While the negotiating parties may be in a situation of win-win, the mediating team will not allow the other party to take more advantage than other, but must make sure all the conflicting parties negotiates fairly to bring the lasting peace. In the IGAD -led peace process it was more inclusive of negotiating parties; even civil society groups or organizations and other non-state actors were allowed on the other hand also suppo1ied that clarion call for inclusivity of negotiation in order to have people -centered political settlement that will guarantee its popular acceptability and local ownership53 . The peace agreement must ensure constitutional safeguards as per the principles of the application of ADR that will necessarily make the agreement stand firmly and the mediators plus the peace guarantor to be the one protection the stability and sustainability of the peace and respect by all the warring parties54 .

Another situation where ADR can be apply is when the parties are not agreeing their national ways of settlements it can be either between one state or the other, example of Abyei case of 2009, where the governments of Southern Sudan and Sudan had a dispute on the status of Abyei on question to who were to vote in the Abyei referendum which was supposed to take place in 2011 when Southern Sudanese were voting for their own independent. The contentious issue was between the Dinka Ngok on the side of government of Southern Sudan and Mesiiria on the side of Sudan government. In this case the application of ADR was the popular means used whereby the parties went before the court of Arbitration in Hague in 2009 and the case was settled where the judgment favored the nine Ngok Chieftaincy and the ownership of Abyei was given to the people of Abyei to vote with exclusion of Mesiiria An Arbitration is also part of ADR that is use the last resort if the application of both negotiation and mediation fails the parties may opt to arbitration for the settlement of that particular case that

53 www.Arusha and Addis Ababa Agreements current(lih-26th August 2015) between Government and Rebel SPLM 10 54 www.South Sudan IGAD Peace Agreement signed in Addis Ababa Eithopia between South Sudan Government and SPLM In Opposition,SPLM Political Detainees and other Political Parties in (lih -26 th August 2015)

52 need international expertise on arbitration like the case I have just mentioned above55 . So, though arbitration is tone of the types of ADR but it cannot be use anyhow.

In December 2016, H.E.President Salva Kiir Mayardit decreed the presidential order for the formation of Peace Dialogue Reconciliation Groups that called for all parties to the current South Sudan conflicts on how to bring all the factions on board and to see the ways possible that will bring everlasting peace to the people of South Sudan. This presidential order is in line with the paragraph (4) of II (ON POLITICAL ISSUES) about Arusha Agreement of 2015 that talk of committal the three SPLM Groups to reunification and reconciliation of the SPLM Leadership and membership. So that is how the application of the Alternative Dispute Resolution can work because the reconciliation is one of the types on ADR.

After negotiation and mediation, the last resort for the particular nation or state has to do is to call for a National Dialogue to discuss some matters on the ways of healing and forgiving each other on the wrongs things occurred during the conflict. The dialogue has to be carrying out in free and fair atmosphere where all the parties feel safe in their own country. On the other hand, the National Dialogue has to be inclusive and be done in good faith that let participants participate as much as they wanted without interferences and hindrances.

The National Dialogue can cemented the trust and understanding amongst the parties to the conflict and encourages all the stakeholders of that state to exercise their politicaL economical and social interests in the nation as stated by Arusha Agreement that the SPLM members must embrace the values and culture of democracy, unity and development and commits to undertake and implement urgent comprehensive democratic reforms, reorganization and transformation of the Party because the situation in the country now was triggered within the ruling paiiy.

Applicability of Alternative Dispute Resolution in any situation like the case of South Sudan was stipulated in (Chapter V) of the Addis Ababa Agreement 2015,that provided for Transitional Justice, Accountability, National Reconciliation and Healing.

It is worth mention, that truth, reconciliation and healing: Recognizing the need for national reconciliation and healing, TGoNU will establish an independent national commission for truth,

55 www.Abyei Court of Arbitration held in Hague Geneva between Southern Sudan V Sudan Government in (July 2009)

53 reconciliation and healing, which will establish an accurate and impartial historical record of human rights violations, abuses of power committed by state and non-state actors. indentify victims and perpetrators, recommend legal and institutional reforms and lead efforts to facilitate local and national reconciliation. Commissioners will be appointed from South Sudan and other African states. That the president did, he appointed the very competent elders and the Faiths Groups and added also the Civil

Organization Groups as well as the Youth Groups and Women Groups.

Both, Negotiation, Mediation, Reconciliation and Arbitration cannot be applying in simple cases, there are some cases that the laws of the particular nation or state can settles without application of ADR with exception to the cases of war which is beyond the nation control where the parties are quarrellings on the issues of power may be in elections malpractices or when the sitting government does not allows constitutional changes and so forth. ADR is not apply by the same state when it is at war within itself, the Regional and the International Bodies such as UN, which is one of the International body has a lot of responsibilities to tackles if there is a threat to International Peace and the Regional Bodies are AU, EU Arabs League as well IGAD and many others.

Joint Monitoring and Evaluation Commission (Chapter VII) of the Addis Ababa Peace Agreement 2015

ADR as a method does not operates 111 vacuum, it operationalise itself with the help of the guarantors those who urged the parties to conflict to come to agreement. As Chapter VII of Addis Ababa Agreement stipulated robust oversight: The Joint Monitoring and Evaluation Commission (JMEC) will oversee the implementation of the Agreement. The JMEC will have the power to take corrective actions in the event of non-compliance with the terms of the Agreement, including the adherence of the Parties to the agreed timelines and implementation schedule of the Agreement.

According to the agreement it was stated that the JMEC shall oversee the institutions created or operating during the transition, including the Ceasefire and Transitional Security Monitoring Mechanism, the Economic and Financial Management Authority, the Strategic Defence and Security Review Board, the National Elections Commission. All transitional institutions shall

54 present regular reports to the JMEC for this purpose.JMEC shall also report regularly to the TGoNU Council of Ministers, the Transitional National Assembly, the IGAD Council of Ministers, the Peace and Security Council (PSC) of the African union and to the Secretary - General of the United Nations on the status of implementation of the Agreement not less than every three (3) months.

The same agreement provided for the broad-based membership and high-level leadership. The membership of JMEC will include representatives from the Parties to the Agreement, other than South Sudanese stakeholders, and the regional and international guarantors and partners of South Sudan.JMEC will be chaired by a prominent African personality, appointed by the IGAD Heads of State and Government in consultations with partners.Therefore,this is where the method of application of Alternative Dispute Resolution becon:ie paramount in conflicting situation such as in the South Sudan problem it is the agreement using ADR as a means to settle the dispute that came up with that modality of selecting JMEC to monitors the warring parties and to evaluates how they are implementing the terms and conditions of the both Addis Ababa and Arusha Agreements concurrently. Without that body the chances of the collapsing of the agreements are very high that is the goodness of the applicability of the ADR.

The language of the application of Alternative Dispute Resolution is very technical if one does not understands it better, for examples, in Chapter I of the Addis Ababa Peace Agreement provided for the Transitional Governance Arrangements; Broad based and inclusiveness of the Agreement: The agreement provides for a broad-based. all-inclusive Transition Government of National Unity (TGoNU),comprising the four negotiations parties: the GRSS,the SPLM/A(IO),the SPLM Leaders (FDs) and Other Political Parties. The ADR in this point talks about inclusivity of the agreement without any groups later on to complain why the accord was signed without exclusion to the other party.

The Agreement also provided tasks and term: The TGoNU will be in office for 30 months, implement reforms and lead South Sudan to general elections. To initiate the TGoNU, a 3- month-Pre-Transition will commence on signature of the Agreement, to complete the tasks necessary to operationalize the TGoNU. The constitution of any nation or state does not spelt out like the method that the ADR provided here in this South Sudan Agreement because application of Alternative Dispute Resolution to the conflict aiming at bringing the warring parties together

55 until the time the go back to their normal ways of handling things with regard to the constitution of that very particular country.

Compromise on power sharing: The Agreement provides for the former GRSS to maintain a m~jority in the legislature, the positions of President and Vice President and 53% percent of ministerial po1ifolios; the SPLM /A(IO) the second -largest share of the seats in the legislature, the new position of First Vice President and 33% percent of ministerial po1ifolios; and the SPLM -FD and Other Political Pa1iies allocated 14% percent of ministerial po1ifolios and representation in legislative institutions. Decision-making in the institutions of TGoNU ( Council of Ministers, TNA etc.)Shall be by consensus, simple majority and on matters affecting the Agreement by two thirds or 67%.Alternative Dispute Resolution as mechanism for settlement has so many technicalities as I mentioned before, because it very complicated language of the appeasement to allow parties to respects the originality of the peace agreement. The Addis Ababa Accord is called as Compromising Peace Agreement because the Mediators convinced the warring parties for each to compromise his/her position for the sake of their peopk who are suffering because of their political interests.

The application of ADR in the negotiation is why Addis Ababa Peace Agreement has become vast area where much of research based on it has been providing for the Schedule of powers: The incumbent President according to the agreement shall serves as President and the Executive Head of State for the Transition period. The powers, functions and responsibilities of the President the First Vice President and the Vice President will be clearly defined. In the event of disagreement on decision-making there are clear procedures to break the deadlock. The Agreement extends the terms of the incumbent President, Vice President and for the 7 State Governors of the states not affected by the either until the end of the Transitional Period or an elected government is in place.

It is because of the application of ADR that led to the expansion of the National Legislature: Expanded to incorporate additional members from SPLM/A(IO) and the Other Political Parties for the duration of Transition. The term of the current Transitional National Assembly (NTA) shall be extended as per the term of TGoNU; and expanded from 332 to become 400.The SPLM/A (IO) shall take 50 members of TNA while other political parties 17 and the SPLM Leaders (FDs) take 1 of the added members of TNA.Memebers of the National Assembly who

56 may have been previously dismissed shall be reinstated. The same shall apply to any members of the Council of States. Without ADR as an alternative to problem the sharing of power at both levels if government structures according to the terms of the agreement and this is where the applicability of ADR methods is much needed.

Applicability of Alternative Dispute Resolution in Armed Conflict situation is also provided for the Judiciary reforms in case of South Sudan when Addis Ababa Peace Agreement was signed. It stated that there shall be reformed to ensure its independence; and, subscribe to the principle of separation of powers. The judicial Service Commission shall be reformed as per the Addis Ababa Agreement. When we talk of reformation of the judiciary according to the agreement it seems that the judiciary shall be independence from both Executive and Legislature in South Sudan instead for judiciary to meddling in the where it is not supposes to involved.

There is mechanism provided by the resolution on South Sudan Conflict that mentioned the arrangement for states most affected by conflict: In Unity, Upper Nile and Jongeli, state governments will be reconstituted to ensure the reform of governance in these areas. The State Council of Ministers in the States of Jonglei, Unity, and Upper Nile shall be reconstituted and appointed at the beginning of the Transition, and not later than a month, as per the following power sharing ratios: GRSS; thirty -three (33%) per cent; SPLM/A-10: fifty-three (53%) per cent; SPLM Leaders (Formers Detainees): seven (7%) per cent; Other Political Parties: seven (7%) per cent. The constitution does not provided such kinds of power sharing when there is no conflict, the power sharing according to the constitution is divided basically on the popularity of that party when the members of the political party won majority of the contested seats. However, the ADR may prevail over the constitution if there are crisis in that particular state and ADR as method agreed worldwide for the peaceful settlement of the disputes like South Sudan case.

This research has attempted to examine the role of armed conflict resolution mechanisms and its potential for conflict mitigation in South Sudan. In this endeavor, it sought to establish the implications of equitable and inclusive participation of all the paiiies to the conflict including the Civil Society as well as Religious leaders plus Human Right Representatives so that to bring in their ideas on how the problems have to be settle amicably inclusively for the management of national reconstruction and development.

57 It also examined the salient challenges and opportunities for sustainable peace and security through reintegration and reconstruction of the new state. The study found out that the locus of the role of armed conflict resolution mechanisms has oscillated been conspicuous high-value means of settling the conflicts and basic means of sustaining peace for livelihood. In this arena. peace is dependent on the emergence of effective and legitimate governance structure in the country which calls for concurrent state and nation building. The research also found out that the role of armed conflict resolution mechanism cannot be clearly understood without adopting a holistic approach of application for the use of Alternative Dispute Resolution.

To end the armed conflict in South Sudan, there is need for active involvement of all parties concerned namely; South Sudan Government, theSPLM/ SPLA In-Oppositions, SPLM Political Detainees, Other Political Parties and Civil Society, NGOs, INGOs and the UN special agencies. The first stage is to acknowledge the scale of the problem. The second is for all concerned parties to develop the will to take the difficult political steps required to prevent further means of resolving the disputes.

ADR has to be maintained as the only method or mechanism of dealing with all the disputes when there is a need to settle any conflict arising at that particular time with the inclusion of all the parties involves as stated before about the applicability of Alternative Dispute Resolution.

The ADR has been applied in most cases in South Sudan and in reference to Kenyan crisis occurred in 2007 during generation elections between the former President Mwai Kibaki VS Raila Odinga Amolo Onginga plus the current Kenyan President and his Deputy William Ruto. In this case more 1,000 Kenyan lost their lives and many others were displaced until the when the case was settled by former UN Secretary General Kofi Annan and the Ghanaian former President John Kufur were the one who mediated the peace in Nairobi whereby all parties to the conflict were on board and the agreement was signed in which the post of Prime Minister was created on the side of opposition until later when the constitutional referendum was held 111 Kenya that scrapped off the created position of Prime Minister by all Kenyans.

In relation to that, the agreement on the resolution of South Sudan conflict has provided that National elections: organized by a reconstituted elections commission, and held 60 days before the end of the Transition Government of National Unity early 2018 or otherwise if there is

58 anything that may delays the elections for that particular period of time.So, it is the agreement that has stipulated like basically on what all the parties to peace accord accepted.

Permanent Ceasefire and Transitional Security Arrangements (Chapter II) of the Addis Ababa Agreement 2015

The Agreement provided for terms for a permanent Ceasefire: to come into effect \Vithin 72 hours of the Agreement and lead to the withdrawal of all allied foreign forces and militias present in South Sudan. All forces previously in combat will be separated, assembled and cantoned in designated areas, according to a precise and rigorous timetable, with priority being given to the areas most-affected by conflict. That is what the agreement says about the status of the army under the rebel control and how the both parties respect the terms of the agreement regarding Ceasefire and cantonment sides. With all these mentioned the ADR applicability is the most important thing based on the negotiation of the parties and the mechanism laid down by the mediators.

Alternative Dispute Resolution is a mechanism where nations in crisis try to solve its problem using neutral body that can facilitate the peace talk neutrally and without biasness to each and every party to the armed conflict. After 2013 clashes between the forces loyal to President Salva Kiir Mayardit and the forces loyal to former First Vice President Dr.Riek Machar fought ,the Agreement on the Resolution of Conflict in the Republic of South Sudan provided under chapter one of the Addis Ababa Agreement for the unification of the security forces: The TGoNU shall within 18 months of the Agreement, complete the unification of security forces with national army and security forces fully constituted, unified under a single command. Until such unification is completed the President of South Sudan and the Chairman of the SPLM/SPLA-IO shall be commander-in-chief of their respective forces; and, the chair and Deputy of the National Defence Council and National Security Council respectively to facilitate unification process. Hence, that is the nature of the applicability of ADR in armed conflict situation if the case was to be handled in the court of law of South Sudan it would have not come up with those issues of separates army and security in the same state.

Another application of Alternative Dispute Resolution on South Sudan conflict can be found in the provision that had provided for Monitoring the Permanent Ceasefire: The IGAD Monitoring

59 and Verification Mechanism, which has been monitoring the Cessation of Hostilities, will become the Ceasefire and Transitional Security Arrangements Monitoring Mechanism, and comprise representatives from across South Sudan society, as well regional and international membership. When the parties to the conflict reached to an agreement there are some rules and regulations to be put in place for the protection of the agreement signed not to collapses and that is why there is that body which is entrusted with powers of monitoring the permanent ceasefire.

Applicability of Alternative Dispute Resolution on the armed conflict situation' and mechanism for settlement to the problem can be done t create conducive atmosphere in the country. In IGAD South Sudan Peace Negotiation which was held in Addis Ababa, the paiiies agreed to demilitarizing Juba the national capital: The National Capital Juba shall be demilitarized within the Pre-Transition Period (within 90 days of the signing) of the Agreement in order to create conducive conditions for the formation of the TGoNU and the return of the SPLM/SPLA-10 and SPLM Leaders (Former Detainees) to Juba. Consequently, Juba shall be designated as a special Arrangement Area (SAA).Third party units under a UN, AU or IGAD mandate will provide protection in Juba, and any other location identified and agreed to by the Pa11ies, for the term of the TGoNU. That is the reason why the called this method Alternative Dispute resolution because it brought means where all parties have to involved to paiiicipate and expresses your opinion on the matters of the nation. This method would have not work without the application of ADR in this situation.

Alternative Dispute Resolution acts as driving force to the parties who are involved into the armed conflict, it may forced the pai1ies to accept what they did not intended to sign like the case of South Sudan the Agreement was a bit bias against the government but the government delegation to negotiation were compelled to signed some of the provisions which were against their will. Example, Agreement talked about reforming the security sector: A Comprehensive Strategic Defence and Security Review will be convened to examine the requirements for South Sudan's future national military and determine the process of security sector rcfc)rrn and professionalization .

Humanitarian Assistance and Reconstruction (Chapter III) of the Addis Ababa Agreement

60 As part of the applicability of ADR, it was stipulated in the accord that commitment of the warring Pruties: The warring Parties commit themselves to creating an enabling political and legal environment for humanitarian action. The TGoNU shall institute programs of relief, repatriation, resettlement and reintegration and rehabilitation of IDPs in collaboration with relevant agencies. It is the responsibility of mediators to included the humanitarian situation in South Sudru1 because the parties blocks the free movements of the humanitarian workers to go the areas under each factions forces.TheAgreement had to pressurize all parties to conflict to allow humanitmian access to IDPs and to the needy people as per the agreement and according the international norms and standard.

The agreement stated according to both negotiators and mediator to the peace process, that there shall voiuntmy return of the displaced people: After the signing of this peace accord, all displaced persons (refugees and IDPs) will be enabled and facilitated to the voluntarily return home. Special services in health and education will be offered to conflict-affected populations (special consideration to conflict-affected persons children, orphans, women, widows, war wounded, etc) to ensure their rehabilitation.

During negotiation, it was agreed by paities that there is going to be Permanent Constitution Making Process (Chapter VI), South Sudan will adapt a Permanent Constitution during the Transition Period. The TGoNU will oversee the permanent constitution-making process. based on the principles of rules of law, federalism, democracy, good governance and national unity in diversity. A broad and inclusive process will develop and adopt a constitutional text, through the mechanisms of public consultation, constitutional conference and a constituent assembly. The Permanent Constitution shall be completed not later than twelve (12) months before the end of the Transition period and shall be in place to guide the Election s which shall be held 60 days before the end of the Transition Period. The TGoNU shall seek support of regional and international experts to benefit from the experience expe1tise and best practice to assist in the constitution-making process. That is the applicability of Alternative Dispute Resolution in the armed conflict situation to bring parties together for the settlement of such cases.

In conclusion according to this chapter. applicability of Alternative Dispute Resolution can be the last option that people deals with urgent cases that need not to be addresses based on the laws of that state. The international and regional bodies are tasks with the responsibilities of bringing

61 the disputing groups together for negotiation because negotiation does not allow all parties to threats each other on the negotiating table. All parties have to respects the mediation team and the principles of negotiation in place.

In the application of ADR, there are no cases of bribery unlike the comi of law where the richest clients can take the advantage of those clients who do not have enough money to facilitate themselves before court.ADR does not work on the discretions of the judges because it is method that dealt with the free will of all the conflicting parties to the conflict and how to bring them back to their normal existence after conflict.

CHAPTER FIVE

5.2 Conclusion and Recommendation Basically on the findings of all that are mentioned above on how Alternative Disputes Resolution on the historical background, the legal framework of the ADR with its types as well as its applicability in the armed conflict situations, has become the means of solving or settling armed conflicts in the world rather than using the court of law as the legal way of solving problem.

ADR on the other hand, is now the easiest means and cheapest method of settling disputes. Unlike the court of law that has become very expensive whereby some clients who are venerable to get money cannot afford it to hire lawyers or having well representation before the court of because the legal representation has been commercialize now a days.

Alternative Dispute Resolution as a mechanism has its own types such as negotiation, mediation, arbitration and reconciliation as the ways of which all the paiiies to the conflict have to resort to resolve the dispute amicably without any other pmiy to take advantage more than the other56 . The negotiation and mediation were the means used in the longest civil wars between the Sudan People Liberation Movement and Sudan government in 2005 when Comprehensive Peace Agreement was signed in Kenyan town of Naivasha through negotiation and was mediated by (IGAD) as well as South Sudan civil war that was started in 2013 and ended in 2015 57 using the same means as only mechanism to brought the conflict settlement between the Government of South Sudan and the rebel Sudan People's Liberation Movement/Army (SPLM/SPLA) In-

56 www.CPA Comprehensive Peace Agreement led by IGAD in Naivasha Kenya (9 th January 2005) 57 www.South Sudan IGAD Peace Agreement (26 th August 2015)

62 opposition of Dr.Riek Machar and SPLM Political Detainee led by the SPLM former Secretary

General Pagan Amuom 0Kech58 .

Many African citizens have lost faith in the ability of their nations, courts to provide timely or just closure to their grievances. Take this example of a 2009 survey in Liberia found that only 3% percent of criminal and civil disputes were taken a formal court. Over 40% percent sought resolutions through informal mechanisms. The remaining 55% percent went to no forum at all. This includes cases where claimants felt the need to take justice into their own hands. oHen with violent consequences. That is the reasons why all the African countries have resorted to ADR to be the only means of settling the armed conflicts in Africa like the case of Sudan and South Sudan where the conflicts were resolved through the negations.

However, although ADR has become the only means to settle disputes very many countries do not respect to agreements they have signed and that is why Abel Alier K wai wrote a book that too many agreements dishonoured.For example, Dr.Riek Machar and Pagan Amuom all signed the two twins agreements of both Arusha under auspices of Chama Cha Mapinduzi in Tanzania and Addis Ababa peace agreement led by !GAD.These two agreements stipulated according to the principles of the accords that the SPLM has to make reunification of its ranks and files and the Addis Ababa accord stated that the power has to be shared amongst the disputed parties.

As chapter I of the Addis Ababa agreement talk about the Transitional Governance Arragements.The agreement mentioned broad based and inclusivity of the peace accord belov.1 stated. The Agreement provides for a broad- based, all-inclusive Transitional Government of National unity (TGoNU).Comprising the four negotiating parties: the Government Republic South Sudan (GRSS), the Sudan People Liberation Movement/Anny In-opposition (SPLM/A

IO), the Sudan People Liberation Movement Leaders (SPLM-FD) and other Political parties59 .

The agreement tasks and terms: It was stated that the TGoNU will be in office for 30 months as per Addis Ababa agreement, implement reforms, and lead South Sudan to general elections. To

58 www.Comprehensive Peace Agreement between Government of the then Sudan V Sudan People Liberation Movemdnt/Army in the Kenyan Town of Naivasha {9th January 2005) 59 www.lGAD led Peace Agreement between Government of South Sudan VS Sudan People Liberation Movement/Army in(26th August 2015) plus SPLM Political Detainees and other Political Parties

63 initiate the TGoNU,a 3-month Pre-Transition will commence on signature of the Agreement, to complete the tasks necessary to operationalize the TGoNU.

The compromising peace agreement on power sharing provides for the former GRSS to maintain a majority in the legislature, the positions of President and Vice President and 53 percent of ministerial p01ifolios: the SPLM/A (IO) the second-largest share of seats in the legislature, the new position of First Vice President and 33% percent of ministerial portfolios; and the SPLM - FD and Other Political Paiiies allocated 14% percent of ministerial portfolios and representation in legislative institutions. Decision-making in the institutions of TGoNU (Council of Ministers, TNA etc) shall be by consensus, simple majority and on matters affecting the agreement by two thirds or 67% percent. So, that was how the power divided amongst them they conflicting parties to the war. Eventually, the political ambitious of Dr.Riek Machar caused the second fighting in Juba 2016 the 7,8 and 9 July that forced him to seek asylum in South Africa. He would have wait for the Transitional Government of National Unity first finish and after that go for campaigns for presidency if he so wish to become president. Therefore,he ran out of patience and chooses war as the short cut to leadership. Riek did not even respected the terms and conditions of the agreement hence, that is why I related the quote of Abel Alier Kwai "that too many agreements are dishonored" this is in line with what Dr.Riek Machar did in 2016 that he was disrupting the agreement not to moved ahead smoothly but frankly speaking some people may agree with me or may not agree with me on this basically on their opinions60 .

It is because there were so many agreements signed by both South Sudan Government and the rebel Sudan People's Liberation Movement and many other rebel movements in the African Countries but they don't respects those agreements. ADR would have been the best mechanism ever for resolving armed conflicts rather than resorting to the court of law where things become very expensive and the justice delay as stated before.

Basically on the recommendations, in practice, events that are happening needs to be scrutinize well to know really what cases that need negotiation and mediation and on what point are the supposes to be taken before the comi of that particular state or country.Surperisingly, the 2015 Addis Ababa Agreement IGAD summits had suffered total lack of steps design that was why the

60 www.South Sudan Arusha Peace Agreement about the SPLM Reunification under auspice of Chama Cha Mapinduzi in (21st January 2015)

64 peace process took long since 2013-2015.To me there is -~~d to nave a clear plan of action for

~:\,,~- 0 "' the summit, to deliberate and take a bold action on it as a countable achievement.

The second recommendation is dialogue with the warring parties. At this stage, the mediation team has to be aware of what is in the minds of warring pai1ies after when the framework for the peace negotiation is in place and the mediation to put on board the parties so that all of them do not cast doubt on the mediation team. They negotiators first wanted to know what is happening in the peace process through the peace talk's timetable.

The representation of both parties to the armed conflict have to be considered paramuontly, without exclusion of the other groups as they mediators did in the Addis Ababa Peace Agreement .ADR is recommended to be special method of settlement of disputes amongst the conflicting pmiies to negotiate fairly and to reach the comprehensive peace agreement that will be lasting longer. Application of ADR to this effect has also become popular in its application in such cases because it is the mem1s where minority groups gets their rights opposed to the national constitution that does not fully respects the rights of minority in cases of power sharing and political representation.

We all know types of Alternative Dispute Resolution of Negotiation, Mediation, Reconciliation and Arbitration, these types are the basis where by the steps and processes in which any peace talks can be conducted as modality that is use in order to find solution to any problem. When there is situation where the country fall into the state of power struggle, there is no any other method to be apply for the settlement of that case rather than using ADR as it happened in South Sudan and many other countries in the world.

It is also recommended that mediators have to be neutral, impartial and honest to both parties involved in the armed conflict resolution because to avoid cases of doubt that give mistrust between the conflicting paiiies and to the mediation team that is task to facilitate the negotiation. It is bad if one of the mediators may liaise with one party to the problem like South Sudan case where some participants had accused the mediation team in Addis Ababa Peace talk \vhere the negotiators who were negotiating on the side of government accusing the mediators of being loyal to rebel groups and the oppositions parties. This issue was about to hindered the peace

65 process and that was why the like of Dr.Riek Machar had abrogated the terms of the agreement and again become rebel up to now.

In power sharing, there is need to know the State Sovereignty of that particular country because in sharing power there is need to make proper limitation and unlimitation of the power sharing amongst the disputants to that conflict. For instance, the ratios of power sharing in South Sudan Peace Agreement signed in Addis Ababa were very bias against the government in Juba because the excessive powers were shared between SPLM/SPLA inGovernmnet and SPLM/ SPLA In­ Opposition led by Riek Machar Teny in term of Security Forces and the separates army given to him by the agreement for period of 18 months that prompted him to staged another coup attempt reason that he knew he had enough forces to captured the whole of Juba City.

Another loophole that was triggered the July 7,8 and 9 fighting in Juba was the issue of parallel security reports on both side of government and the SPLM/SPLA IO Security Personnel that exaggerated that the former First Vice President designated according to the agreement was detained.Therefore,the forces loyal to Dr.Riek Machar did not better understood the reason why the President called the meeting in Presidential Palace all of the sudden the fighting erupted that led to 7,8 an 9 July heavy confrontation in July 2016.I blame the mediators about the 2016 clashes in Juba if they did not signed the agreement like that then ,there would have been no such clashes in Juba.

The mediators were even sitting back instead for them to follow the implementation of the agreement; they left only JMEC which was assigned but that protection of peace agreement need more efforts from the mediators and guarantors. I advise them that if there is another case in future in relation to the South Sudan problem they will not apply the method of power sharing they made in 2015 Addis Ababa Peace Agreement.

According to my understanding, the mediators were in position of conducting peace process in comparison to 2005 Comprehensive Peace Agreement that was signed in Naivasha Kenya between the then Government of Republic of Sudan and the Rebel Sudan People Liberation Movement/Army. The CPA should not be a wholesale out of context, which was the reason why the powers were wrongly shared between the warring parties, yet there are good things to borrow from it to learn. However, the IGAD mediation, and most prominently its former chief Mediator

66 General Lazarus Sumbayo and his staff, some of whom are still staff up to date in Addis Ababa have let the CPA model look control of their thinking and their tactics of achieving peace. How the peace was achieved in2005 would have not been the rule of procedure in 2015 as time, circumstances and paiiies involves in the armed conflict are different from the previous ones. In other words, I am recommending that CPA model be used as an advisory guide for the last IGAD led-peace process, but not carryover the old guide.

Finally, in this armed conflict, the mediators should understand where they had gone wrong, and quickly take corrective action. Negotiation is a diplomatic engagement but not a divine work and if you fail to make peace, you can honorably step aside. All the mediators in South Sudan armed conflict had witnessed the time innumerable attempts by mediators who had tried to resolved the armed conflict in Palestine but all in vain. The failure of both UN former chief Kofi Annan and Lakhadar Brahimi to resolve the Syrian crisis was considered normal and they were backed to the UN systems. Although the IGAD mediators brokered the deal between the South Sudan warring parties, then they would have declared it failures and allowed other persons or institutions to take over from them.

The citizens of South are deeply concerned about non-adherence to protocols signed by the parties so far. A clear and flagrant violation had been frequently coming from the SPLM/SPLA in-Opposition in attacking government position in different areas in greater Upper Nile Region. Therefore; we proposed that after having signed an agreement and established Joint Monitoring and Evaluation Commission, include reasonable number of civil society to help transitional government of national unity and the international community in the implementation, monitoring and evaluation of agreement. I emphasized as a researcher, that the president and his entire cabinet should a bid by the requirements of peace agreement and the constitution should have provision that subjected senior government officials for impeachment by legislature for violating the terms of the agreement. This thing can happen when the citizens are granted enormous powers to demand good governance and accountability from their leaders, especially elected leaders. It should grant citizens to have the power to recall their MPs.

Last but not the least, both Arusha and IGAD -led peace processes have now radically shifted from the people's clarion call for redefinition of the political structure to a debate on renegotiating themselves into political power. It is suggested that the government and

67 SPLM/SPLA In opposition to give people a change for consultation on system of governance, while strongly emphasizing federal structure as the best option. This governance arrangement will deconcentrate state power from the institution of the presidency or central government and create myriad level of governance based on broad representation. It will mark a new beginning of competitive politics based on political ideology.

68 BIBLIOGRAPHY Books

Abel Alier K wai, "Southern Sudan: Too Many Agreements Dishonoured" (1992)

Abyei Court of Arbitration Judgments between the Government of Sudan and the then Government of Southern Sudan (2009) at Hague Netherland

Arop Madut-Arop. "Sudan's Painful Road to Peace: A Full Story of the Founding and Development of SPLM/SPLA." (2006)

Bona Malwal, "People & Power in Sudan: The Struggle for National Stability" (1983)

Douglas Johnson, "The Root Causes of Sudan's Civil Wars: Peace or Truce" (2011)

Gabriel Achuoth Deng, "Wars and a new vision for the Sudan: (a political lesson)

Joseph Lagu Yanga, "Sudan: Odyssey through a state: from ruin to hope (2006)

Mansour Khalid, "War and Peace in the Sudan: A Tale of Two Countries" (2003)

Peter Adwok Nyaba, "The Politics of Liberation in South Sudan" (1996)

Scopes Poggo, "The First Sudanese Civil War: Africans, Arabs, and Israelis in the Southern Sudan, (1995-1972"(2008)

Steven Wondu, From Bush to Bush. Journey to Liberty in South Sudan"(2011)

WWW.South Sudan Peace Agreement Brokered by the IGAD in Addis Ababa Ethiopia (2015)

WWW.South Sudan Peace Agreement signed between Government and the Rebel of current Deputy Minister of Defence and veterian Affairs David Yau Yau (2012-203) under auspices of Archbishop of the Catholic Church of South Sudan Paride Taban and Bishop Yugothu

WWW.South Sudan Peace Agreement with the remaining forces of late .Renegade Gen. George Athor Deng in (2012) under the auspices of the Archbishop of Episcopal Church of South Sudan and Sudan Dr.Daniel Deng Bul Yak

69 WWW.South Sudan SPLM Intra-Party Peace Agreement on the Reunification of the SPLM under auspices of the Chama Cha Mapinduzie in Arusha Tanzania 21 st January (2015)

WWW.Sudan Comprehensive Peace Agreement between Government of Sudan and the Sudan People Liberation Movement/Army (2005) in the Kenyan Town ofNaivasha

Yosa Wawa, "The Southern Sudanese Pursuits of Self-Determination: Documents in Political History"(2005)

70