Deputy President David Mabuza, President Ramaphosa’s Special Envoy to South Sudan, has displeased both sides in his efforts to resolve the country’s bitter civil dispute. The opposition has accused him of bias towards the government of President Salva Kiir.

Yet the spokesperson for Kiir’s government is also unhappy with a proposal Mabuza made last week to get external arbitrators to decide on the most contentious issue between the government and the opposition, the question of how many federal states South Sudan should have and what their boundaries should be.

It is mainly this dispute that has been preventing the government and opposition getting together to form a transitional government of national unity (TGNU) over the past year. The opposition, as well as analysts and diplomats, sharply criticised Mabuza for proposing that the TGNU be formed by the agreed 22 February 2020 deadline, while arbitrators would have 90 days to decide on the number of states. The opposition says this favours the Juba government.

Last week the government did seem to support Mabuza’s proposal. But on Sunday government spokesperson and Information Minister Michael Makuei told Daily Maverick that the proposal for arbitration contradicted the peace agreement of September 2018, which is the framework for the current negotiations.

South Sudan had 10 states when it seceded from Sudan in 2011 to become Africa’s newest nation and this number is stipulated in the constitution. But in 2015 Kiir unilaterally increased the number to 28 and then later 32. The opposition believes he added the extra states to gerrymander greater support for his own Sudanese Peoples Liberation Movement (SPLM). They insist that the constitution is explicit that South Sudan comprises only 10 states and that only a constitutional amendment approved by two-thirds majority of both houses of Parliament can change that.

This dispute has become the main obstacle to resolving the bloody civil war which erupted in December 2013 shortly after Kiir had fired his former deputy Riek Machar. The conflict quickly expanded from a personal power struggle to a nasty sectarian clash between Kiir’s Dinka ethnic group and Machar’s Nuer in which thousands have been killed and many more displaced.

In peace talks mediated by external players, led by the regional Intergovernmental Authority on Development, Kiir, Machar and other unarmed opposition parties first agreed in August 2015 to a ceasefire and for both leaders to participate in a transitional government of national unity. That pact exploded violently in July 2016 when Machar had to flee the capital, Juba, for his life.

After further outside mediation, Kiir, Machar and other parties agreed to the Revitalised Agreement on the Resolution of Conflict in South Sudan in September 2018. It committed them to form a transitional unity government by May 2019. This deadline was missed and then pushed back to November, mainly because of failure to agree on the number of states, though also because of security issues.

After that deadline was missed, the parties then agreed on a third deadline for forming the unity government – by 22 February 2020. In early December the South Sudanese parties met under Mabuza’s mediation to discuss once again the question of how many states the country should have. All except the government agreed South Sudan should return to the original 10 states. Kiir’s government would not budge from its insistence that there had to be 32 states.

So Mabuza adjourned the meeting. He later asked all parties to present him with written statements of their positions by 13 January 2020, opposition parties said. The parties did so. And so when Mabuza convened a meeting of the parties on 14 January, “the parties were expecting the mediator to discuss the responses made by the parties and consider the way forward,” the South Sudan Opposition Alliance, a grouping of 10 unarmed political parties, said in a statement last week.

Instead Mabuza “pulled a surprise” after meeting Kiir last Thursday by proposing to refer the issue of the number of states to arbitration.

Mabuza met Kiir along with the special envoys to South Sudan of Kenya, Uganda and the Intergovernmental Authority on Development. Mabuza announced after the meeting that Kiir’s government had agreed to the arbitration proposal and he hoped the opposition would also accept it.

He said in a later statement that the signatories to the Revitalised Agreement on the Resolution of Conflict in South Sudan had all agreed to the formation of the TGNU by the 22 February deadline. They had also agreed on a seven-day period for further consultation on the proposal of arbitration as a mechanism to break the impasse about the number of states.

And the South Sudan Presidential Press Unit issued a statement saying Kiir had agreed with Mabuza and the special envoys of Kenya, Uganda and the Intergovernmental Authority on Development to the TGNU being formed before the February deadline “and to subject the question of the number of states on an arbitration mechanism, that will take 90 days after the formation of the transitional government of national unity”.

The opposition seems to have rejected Mabuza’s proposal before the seven days are up. Machar’s SPLM-In Opposition (SPLM-IO) said on Friday it was “shocked” by Mabuza’s proposal. Party spokesperson Mabior Garang told Daily Maverick that Mabuza’s position was “eerily similar to the regime’s”. He said if the TGNU was formed by 22 February, but that the external arbitrators be given 90 days to resolve the dispute about the number of states, the government could be formed, with 32 states, before the question of the number of states had been agreed upon.

If the arbitrators later decided that the country should revert to just 10 states, it was highly unlikely Kiir would implement this decision, Garang said.

Government spokesperson Makuei said Mabuza’s proposal of external arbitration contradicted the Revitalised Agreement on the Resolution of Conflict in South Sudan. That stipulated that an Independent Boundary Commission should determine the number of states and their boundaries. He noted that that commission had failed to reach agreement. In that event, the revitalised agreement stipulated that the Independent Boundary Commission should re-constitute itself as a commission to conduct a national referendum asking the South Sudanese public how many states there should be.

“There is no question of taking it to arbitration. Those who talk about arbitration are not very well versed with the (revitalised) agreement, “ Makuei said. “We have not rejected the South African Deputy President’s proposal. But it is a mere proposal — and it’s outside the agreement. We should conform with the agreement.”

Alan Boswell, senior analyst on South Sudan for the International Crisis Group, said Mabuza’s proposal of external arbitration was “dead on arrival”. It had not been received well, neither by the opposition nor diplomats nor analysts. The opposition had rejected it in the first place because it had not been consulted on the proposal.

But the intrinsic problem with the proposal was that it would allow the TGNU to be formed before the arbitration on the number of states and their boundaries were still being decided.

Boswell said it was unlikely on its past record that the government would agree to implement a proposal from external arbitrators to return to 10 states — which was the most likely decision by the arbitrators. DM