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By Dr Lako Jada Kwajok - 25 Oct 2018

Opinion: When should the Hybrid Court of South Sudan (HCSS) be established?

Almost five years have elapsed since the conflict begun in Juba in December 2013 where tens of thousands of innocent lives were lost. Many families of the victims haven't yet come to terms with their loss. They haven't been presented with the opportunity to handle their grief naturally and reach closure. It's because of the perpetual escalation of the war following those horrific events and lack of justice for the victims. 

No consensus prevails among the South Sudanese people regarding which legal entity is to be given the task of organising trials for those suspected of committing war crimes and crimes against humanity in the Republic of South Sudan. A minority would support leaving the matter to be tackled by our judiciary system. But a significant number of people have less trust in the justice system. The following examples would elucidate why many people do not have full faith in the country's Judiciary system at present: 

1. The government appears to be complacent regarding the widespread insecurity in the country, and the soaring number of murders blamed on unknown gunmen. Citizens are living in an unofficial or self-imposed curfew at night time because of fear for their lives. But the former Chief of Staff of the Sudan People's Liberation Army (SPLA) General Paul Malong shocked many citizens a few months ago when he stated that the unknown gunmen are indeed members of the National Security Service (NSS) commanded by General Akol Koor, the Director of Internal Security Bureau (ISB) of the NSS. Furthermore, suspected murderers who have strong connections with top government officials are often set free from police custody without due process. 

2. Corrupt officials are not punished as sanctioned by the law but often get transferred to other departments, accommodated within the ruling party, and some even get reappointed in different positions.  Arthur Akuen, the former Minister of Finance who embezzled $ 40 million US Dollars from the coffers was set free from jail by some SPLA officers who hail from his community. President Kiir later appointed him as MP representing Aweil; so rendering him a lasting immunity from prosecution. Such acts have made many people believe that the country has fallen into a state of lawlessness and that some people are above the law. 

3. Paulino Wanawilla, the Justice Minister, said the following in November 2015, I quote - "I know in South Sudan corruption is not in one place, but it's very sad when everyone is stealing". He continued further "I know there is corruption. I have evidence of people in this Ministry [Ministry of Justice] who are legal councillors and take bribes".  Wanawilla appears to have given up on the integrity and credibility of the judiciary system. If the Minister of Justice has such little faith in the entire judiciary system (I wonder why he didn't resign?) - What chance does the common man have to receive a fair trial in a court of law?!  

A little bit more than the previous group would opt for the HCSS to carry out justice for the victims of the conflict. It's out of the view that having some foreign judges on the bench would enhance the independence, integrity, and credibility of the court. The overwhelming majority, though, would prefer the International Criminal Court (ICC) to be entrusted with the responsibility of administering justice for the heinous crimes that were committed since South Sudan plunged into civil war in 2013. The public favours the ICC because of its outstanding reputation as an independent, high-quality, credible and competent international legal institution.

In May 2016, the Presidential Advisor on military affairs, General Daniel Awet Akot whose role in money laundering activities was recently unearthed by the Kenyan Newspaper; Daily Nation - said that establishing the HCSS would derail the peace process. The same view was echoed recently by Michael Makuei Lueth, the Information Minister who doubles as the spokesperson for the government. The recent outburst of criticism from the Juba regime came against the backdrop of calls from the United States and the United Nations Human Rights Commission on South Sudan to set up the long-awaited HCSS. The official position of Kiir's government is that the HCSS would undermine peace. Michael Makuei Lueth went further to imply that peace must be achieved first before accountability could be pursued. Such an argument does not hold water because courts are meant to enforce law and order which are the prerequisites for peace. What the government is saying is akin to putting the cart before the horse. The aim is to water down the issue of accountability and allow those responsible for committing atrocities to evade justice.

The government is not alone in resisting the formation of the HCSS. It's bad news to some in the opposition as well. In June 2016, a joint letter authored by President Kiir and the First Vice President then Dr Riek Machar, was published in New York Times, the Guardian and other media outlets calling on the international community to drop the establishment of a tribunal court (HCSS) for the crime committed during the war. The Sudan People's Liberation Movement-in-Opposition (SPLM-IO) and some opposition factions are fully aware that going down the accountability route would hurt them one way or another. The atrocities that were committed in Bor, Pibor, Akobo, Bentiu, and Malakal that were documented in the African Union Commission of Inquiry on South Sudan (AUCISS) are the ones continuing to haunt them. It's the reason both SPLM factions don't want accountability and not that it would be an obstacle to peace.

Africa has witnessed over the past two decades or so situations similar to the calamity that befell South Sudan. Egregious human rights abuses, war crimes, and crimes against humanity occurred in Liberia (250,000 victims), Sierra Leone (50,000 victims), Cote D'Ivoire (3,000 victims), not to mention the Rwandan genocide in 1994 (one million victims) and the 5.4 millions who lost their lives in the Great African War (1996 - 2006) in the Democratic Republic of Congo (DRC). The estimated human loss as a result of the war in South Sudan is now around 400,000 victims.

The people of those African nations found solace through full accountability and fair trials for those involved in war crimes and crimes against humanity. Former President of Liberia, Charles Taylor is currently serving a 50 years jail sentence at the HM Frankland prison, County Durham in the UK. He was found guilty of 11 counts of "Aiding and Abetting" war crimes and crimes against humanity at The Hague, the seat of the ICC in the Netherlands. Laurent Gbagbo, the former President of Cote D'Ivoire, is languishing in a prison cell there awaiting trial. Jean-Pierre Bemba, the former Vice President of the DRC, was convicted at The Hague but was later acquitted. As for the Rwandan genocide, the International Criminal Tribunal for Rwanda (ICTR) was established by the United Nations Security Council in November 1994. The surviving perpetrators received fair trials, and 25 of them were handed down capital punishments.

It appears the leading figures in the government think not only that they could sweep accountability under the carpet but also continue to rule the country as if nothing had happened. It's a view shared by those at the top of the SPLM IO leadership but not necessarily the majority of the SPLM IO fighters and supporters. It's manifested by both SPLM factions propagating the notion of postponing accountability for the sake of peace as they claimed.  But their joint attempt to downplay the criminal events that took place since 2013 is futile. Those events and the on-going ones have damaged the social fabric of the country to the extent that it cannot be mended without full accountability. Moreover, allowing the same people who caused the war to continue ruling the country; would amount to a mockery of those innocent civilians who lost their lives in the cruel war.

South Sudan is not an isolated island in the middle of nowhere. We are part of this great international community and thus should abide by the international law and observe the global norms.  What was good for Rwanda, the DRC, Sierra Leone, Liberia, and Cote D'Ivoire should be good enough for South Sudan. There is no convincing reason that it would not furnish peace and stability as it did in those countries. In all of them, the new administrations that were set up did not include the individuals involved in igniting and executing the wars. The reason was evident as they would have presented a conflict of interests and an obstacle for administering justice. It's the same situation we are faced with right now. 

The AUCISS report also known as the Obasanjo's report, suggested that those who carried positions of responsibility should be excluded from the transition. It makes the HCSS an essential prerequisite for the Transitional Government of National Unity (TGoNU) as stipulated in the Agreement on the Resolution of Conflict in the Republic of South Sudan (ARCSS). Unfortunately, that suggestion by the AUCISS seems to have been thrown out of the window by the Inter-Governmental Authority on Development (IGAD) in the recently signed peace agreement. I would argue that it has reduced IGAD's peace mediation to conflict management rather than conflict resolution. It's a significant mistake and would only prolong the conflict as the current peace deal is unlikely to bring about sustainable peace.

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