South Sudan is lagging not just in terms of physical development and infrastructure but also in the areas of law and statutes. There is insufficient law, and this unfortunate and unwanted scenario is worsened by the absence of the rule of law and constitutionalism. The available laws are abandoned and applied selectively in favor of greedy folks who are above the law. The replacement of the rule of law with the rule of person is due to political and moral decay among “the gun class.”
Since independence on 9 July 2011, we have had a careless and clueless government of a few and unpatriotic people. As we have seen and heard, the government’s operations are characterized by arbitrariness and authoritarianism. Appointments are made through presidential decrees, which benefit the dynasties and a few octogenarians. This type of poor and undemocratic government is causing undesirable distress among the citizenry. I must say, if at all, there is something which this government has done to perfection, it is the clawing back of the gains of our hard-won sovereignty.
These are salient factors hindering our nascent country from implementing the Revitalized Agreement on the Resolution of South Sudan (R-ARCISS). Former United States President John F. Kennedy opined that “Those who make peaceful revolution impossible will make violent revolution inevitable.” The law is crystal clear. Globally, the roles and responsibilities of government are identified and listed based on their importance to the government and governed. French theorist and doyen of constitutional law in the person of ‘Montesquieu’ penned and pronounced that “the government’s duties include but are not limited to lawmaking, executing public affairs, and adjudicating on crimes and criminal cases in the country. (Giussani, 2008). Relatively, the Bible in Romans 13, Verse 1m says “the government has three main functions, namely the preservation of order, the promotion of good and punishment of evil, and the raising and spending of taxes in the interest of the common good.”
In terms of hierarchy, the mandate to protect citizens’ lives and properties remains not just a government’s sole purpose but also a top priority. In the wake of 9/11, Canadian Lawyer John Manley averred that “The most important responsibility of Government is the preservation of order and the protection of its citizens, and the most important civil liberty is freedom from fear of harm on the part of the civilian population, without which our other liberties mean very little.” (Satterthwaite, 2007).
To move away from the roles and hierarchy of government functions, we should highlight the institutions that perform the roles and responsibilities of the government. In any country with a democratic constitution, the roles of government cannot be spelled out without being divided and distributed to relevant arms and authorities. As stated therein, a democratic constitution must have adopted and embodied the legal concept of “separation of powers,” which is demonstrated by three arms of government, namely the Executive, the Legislature, and the Judiciary. In fact, these arms of government have no hierarchy, for they are designed to operate interdependently.
In 2016, during the interview for the position of Kenya’s chief justice, Prof. Makau Mutua likened the three arms of government to the human heart, lung, and brain, which have no hierarchy. At times, when one of these human organs ceases to function, the person suffers and risks death unless otherwise. The same applies to the government. In the unlikely event that the state is left with one arm of government, such as the executive, then the country descends and degenerates into anarchy and lawlessness, as witnessed in South Sudan and Sudan cetera.
The trouble of anarchy and lawlessness is a big problem that threatens South Sudan’s sovereignty. Kenyan author, Murithi Kiyu, in his book, Patriotism and visionary leadership, observes that “…anarchy is a consequence of institutional failure and may lead to the total collapse of the state. The most common form of governance system operates through three arms of government: the executive, the legislature, and the judiciary. Each of these three arms of government enjoys distinct and unique powers.” (Kiyu, 2024).
The Judiciary
The government’s duty to handle criminal cases and justice is a preserve of the judiciary. The Judiciary is provided under Article 123 of the South Sudan Transitional Constitution, 2011, as amended. Naturally, the Judiciary is the last and final arbiter in the dispensation of justice.
Dr. Riek Machar’s case
In March 2025, suspended First Vice President Dr. Riek Machar was arrested and subsequently put before the special court in September. 2025. Now, considering the present political situation, Machar ought to be released before the judgment day. However, this appears to be a legal hurdle because of three legal problems, namely, insufficient laws, the absence of the rule of law, and a lack of constitutionalism. On 2 February 2026, a news article entitled “Expert alleges sensitive details leaked before Nasir attack” was published by Radio Tamazuj. Machar and his co-accused were charged with offences of murder, conspiracy, destruction of public property, treason, and crimes against humanity, allegedly committed in Nasir County, Upper Nile State. As we are aware, Machar’s case has been going-on under immense public and international pressure. So far, the court has conducted about forty-six sessions in Juba. More often than not, the international community, through its diplomatic embassies in Juba, has called for the immediate and unconditional release of Dr. Machar, with the latest group being the African Union Peace and Security Council (AU-PSC).
The clarion call to release Machar came in the wake of armed conflicts and confrontations pitting Machar’s SPLA-IO against the SSPDF, not forgetting the Tumaini Peace Initiative, which was scheduled to resume in Nairobi on 9 February 2026. However, the government, and by extension the public prosecution, has maintained a pin-drop silence. Perhaps, the silence emanated from the absence of law and or ignorance of law in South Sudan. As a matter of fact, nobody, including the court users and legal practitioners, is immune from the challenge of not knowing the availing and applicable law, both in domestic and international law. Kingstone Oyier, in his book, Criminal Prosecutions and the Essence of Criminal Offences in Kenya, stated that “…Ignorance of law does not afford an excuse for any act or omission.” Usually, many people purported to know the relevant law, but they interpreted it differently based on their interests.
Prosecution
The courts are empowered to hear and determine the cases, whereas the prosecutor who files the cases has equally been empowered to terminate the case at any stage before the court delivers its judgment. Specifically, the law that mandates the prosecutor to withdraw and terminate a case is known as “Nolle prosequi.” It is a Latin word which means “do not prosecute.” However, even though the South Sudan Criminal Procedure Act, 2008, is silent on Nolle prosequi, it is a legal principle that empowers all the prosecutors, including the South Sudanese prosecutor handling Machar’s case. In other words, the termination of criminal cases is at the discretion of prosecutors in all cases.
Other jurisdictions
In Kenya and Tanzania, the right of Nolle prosequi has been entrenched in their respective laws and statutes. For instance, “In Tanzania, the mandate to enter Nolle prosequi is a legal right vested in the Director of Public Prosecutions (DPP), who is the head of criminal prosecutions in the country. It is a discretionary power of the DPP. The Criminal Procedure Act, the National Prosecutions Services Act, the Magistrates Courts Act, and the Economic and Organized Crime Control Act empower the DPP to enter Nolle prosequi in criminal proceedings. The law empowers the DPP to enter Nolle prosequi at any stage before the judgment is delivered by the Court, even if it is a date set by the court to deliver its judgment.” (Mkami and Longopa, 2021).
In Kenya, the prosecutor has an authority under article 157 (1)(b) of the Constitution, 2010, to discontinue any criminal proceedings forthwith, but with leave of the court.
To put it plainly, the director of public prosecution, under his signature and authority, is allowed by the constitution to terminate a case under Nolle prosequi, which is also under Section 82 of the Criminal Procedure Code. After the presentation of the Nolle prosequi, the accused (s) are discontinued and the accused discharged, but it does not bar any subsequent proceedings and the accused persons on the same facts.” Before the discontinuation of cases under the Nolle prosequi rule, the prosecutor decides on three fundamental legal issues, namely, the need to do justice, the need to prevent abuse of legal process, and the public interest. In the case of Machar and others, the legal right of Nolle prosequi can be applied based on public interest and justice.
In Uganda, there was a case, Uganda v Milenge, whereby the judge made the judgement saying that “…the court dealt with power of public prosecutor as follows; the first elementary principle is that he is the person, who decides what witnesses to call and that he, at any stage, at the trial, has complete control of the prosecution in court. He can, at any stage of the prosecution, close his case and call no further evidence.” (Oyier, 2018).
How to apply the right of Nolle prosequi
First, the prosecutor can enter a Nolle prosequi by simply alerting the relevant court verbally and or in writing on behalf of the Republic that the matter before it should be discontinued. This means the prosecutor does not need to appear in court physically to stop the proceedings.
Factors of entering Nolle prosequi
The Prosecutor can exercise the right of Nolle prosequi on several grounds, including but not limited to political pressures, community pressures, and lack of evidence, all of which are present in this case at hand.
Consequences of Nolle prosequi
To promote reconciliation
The courts are like war zones, and for this reason, they are often viewed as places of last resort. Before the disputants make a decision to go to court, they are advised to seek alternative dispute resolution (ADR), including mediation and reconciliation, which are now available through Tumaini Peace Talks. Interestingly, even when parties are already in court, they are always at liberty to be excused from court so as to seek other means and ways to resolve their dispute.
In this way, the prosecutor can enter Nolle prosequi purposely to initiate and allow reconciliation to take place by way of political settlement of conflict. In the East African region, the courts have a policy to promote reconciliation. South Sudan, being a country of believers, ought to be guided by the Holy Bible in Mathew Verse 5:24-25, which advocates for reconciliation. Moreover, the special court that is trying Machar and his co-accused should be alive to the provisions of R-ARCISS under chapter five by reminding the prosecutor to exercise Nolle prosequi with a view to giving reconciliation a chance in South Sudan.
To escape the defeat in court
If the prosecutor has filed a case, and he is of the view that he will lose the case, he can escape the defeat by entering the right of Nolle prosequi. Machar’s case is a perfect example of a case where the prosecutor can enter Nolle prosequi to avoid losing the case in court.
To seek an alternative court
The prosecution can enter Nolle prosequi as an alternative way to look for another forum where it can win the case with ease. For instance, if the prosecutor decides to withdraw and terminate Machar’s case as advised, he is free to look for fresh evidence to restart the case in the Hybrid Court, which is yet to be constituted by the AU in accordance with provisions of R-ARCISS.
To release prisoners
In the event that the right of Nolle prosequi is entered into by the prosecutor, the accused person is released automatically. In this case, if Nolle prosequi is applied, then Machar and other accused persons are free to regain their freedom as demanded by the majority in South Sudan. However, the accused persons can be re-arrested and arraigned in the future if the matter is reinstated in the same court or a different court in the country.
Finally, Nolle prosequi is not just a right, but it is also an absolute legal right bestowed upon the prosecutor to continue and or discontinue the criminal case even if the court has already concluded its finding, and thus waiting to announce the ruling.
In conclusion, the prosecutor has the legal mandate to serve the government and the general public by offering top-notch, professional, efficient, and impartial prosecution services. In exercise of this legal right, the prosecutor does not require any consent from anybody, like Justice and Constitutional Affairs Minister Hon. Michael Makuei Lueth, to discontinue Machar’s case. In other words, the prosecutor in the Special Court can just decide to discontinue Machar’s case through this legal window afforded by the law.
The writer is a lawyer and criminologist by profession. He was a former delegate to the High-Level Mediation for South Sudan, alias Tumaini Peace Initiative, where he represented SSPM as its National Chairperson for the Constitutional and Legal Affairs Committee. He can be reached via eligodakb@yahoo.com.
The views expressed in ‘opinion’ articles published by Radio Tamazuj are solely those of the writer. The veracity of any claims made is the responsibility of the author, not Radio Tamazuj.