Transitional Justice is the only Solution to the deep rooted problems of South Sudan

BY: Daniel Juol Nhomngek, KAMPALA, JUN/17/2014, SSN;

I. Introduction

In the past two decades, scholars and practitioners have focused increasing attention on the question of how countries and societies can come to terms with a history of violence and war, oppression and human rights violations . The concept of transitional justice (TJ) has come to play a prominent role in academic debates on democratization, nation-building and state reconstruction and has gained widespread support from international organisations .

Judicial proceedings and prosecution of individuals suspected to have committed gross violations of human rights, truth commissions designed to establish a record of wrongdoing, reparations to the victims and vetting or dismissals of persons from certain positions have become “central ingredients in the ‘menu’ of reforms recommended by international organisations, donor agencies and outside experts for societies in transition from war or authoritarianism” The concept of reconciliation has gained similar popularity.

In the past decade “reconciliation” has become one of the four main categories of initiatives that receive donors’ support, along with political development, socio-economic assistance and security . Many researchers and practitioners see reconciliation as a necessary requirement for lasting peace, assuming that once a top-down political settlement has been reached, a bottom-up process should take place, in which unresolved issues of the conflict will be handled in order to prevent questioning of the settlement and a return to violence . In this context, coming to terms with the past is considered a precondition for building peace and future relationships .

In this paper my argument is as it has always been that the cause of the current conflict in South Sudan has nothing to do the failure of the SPLM in administration as a government per se but it is as a result of structurally deep rooted problems that have been stirred up by the SPLM failure to investigate these deep-rooted issues and instead sit on them as a government as if there is nothing wrong in South Sudan.

Yet in reality, South Sudan has been bogged down in circle of violence in the past decades where killings went on unabated especially between Nuer and Dinka as a result of hatred sowed by Arab’s divided and rule. Arabs divided not only Dinka and Nuer against each but other tribes against Dinka as a way for them to survive against South Sudanese nationalism. Therefore, for South Sudan to be stable, it must critically adopt some procedures as a way of solving past problems as a precondition for building peace, reconciliation and stable future relationship. Hence, the following solutions should be adopted as a ways of solving problems of South Sudan:

II. WHAT SHOULD BE DONE TO ACHIEVE PEACE BUILDING, JUSTICE RECONCILIATION AND STABLE FUTURE RELATIONSHIP AMONG DIFFERENT TRIBES IN SOUTH SUDAN?

There is a need to adopt transitional justice mechanisms in solving the South Sudan current crisis.

The concept of transitional justice stems from the international human rights movement . At first, it referred to the judicial process of addressing human rights violations committed by dictatorial or repressive regimes in the course of democratic transition but later on, the term also came to be used for processing war crimes and massive human rights abuses committed in violent conflicts .

The concept has now increasingly gained in importance, and has been widely discussed by peace building agencies engaged in war-torn societies during the past two decades . Along the way, it has gradually extended its meaning and it today covers the establishment of tribunals, truth commissions, lustration of state administrations, settlement on reparations, and also political and societal initiatives devoted to fact-finding, reconciliation and cultures of remembrance.

I will explain each of the terms used in the above paragraph such as tribunals, truth commissions, lustration of state administrations, settlement on reparations, and also political and societal initiatives devoted to fact-finding, reconciliation and cultures of remembrance in more details in the coming paragraphs since they explain what constitutes the transitional justice.

Hence, the application of Transitional Justice in the present conflict in South Sudan is important if the peace building and reconciliation have to be achieved.

As a component of transition justice, there is a need for establishing strong Accountability mechanism in South Sudan.

Accountability derives from the fact that no society can claim to be free or democratic without strict adherence to the rule of law; there are mass atrocities and crimes that have been so devastating that civilization cannot tolerate their being ignored. Yet in South Sudan, there are cases of large-scale human rights violations like what happened in Bor and other places in 1990s and the recent massacres in Juba, Bor, Malakal and Bentiu in 2013 and 2014 all these killings should not be left unaccounted for.

In addition, there have been continuous killings among cattle keepers in different parts of South Sudan before and after the independence of South Sudan yet in reality the government seems to be reluctant to tackle these problems. The government appears to have failed to control the killings that have been going among cattle keeping yet it is the role of the government to prosecute the accused and provide justice to the victims.

The blamed cannot be much placed on government due to complexities involved in such prosecutions, which sometime makes it impossible to prosecute everyone, given the limits to the law and prosecution because the crimes and atrocities committed are enormous. The accused or criminals cannot be prosecuted without causing more violence since majority of government officials and army offices are involved in committing those crimes in one way or the other.

Hence, although formal criminal justice provided by courts is important, additional activities are needed that focus on documenting the truth about the past if peace building and reconciliation is to be achieved in South Sudan. Such additional activities of parts of transitional justice and are explained below which among others include:

a) Within Truth Recovery.

The government should conduct within truth recovery. In this respect, within truth recovery has four different notions which are: objective or forensic truth (evidence and facts about human rights violations and missing persons), narrative truth (storytelling by victims and perpetrators and communicating personal truths and multi-layered experiences to a wider public), social or dialogical truth (truth of experience that is established by interaction, discussion and debate) and healing or restorative truth (documentation of facts and acknowledgement to give dignity to the victims and survivors) . In other words, within truth recovery means finding out the whole of what had exactly happened in the past and finds the way out how to help the victims.

The overall goal of within truth recovery is to ensure that the victims express their views and explain their own experiences which they underwent when they were being tortured by the accused. The other reason for within truth recovery is to satisfy victims psychologically that their needs for justice have been met. This point is important because it helps to restore confidence of the victims and public at large in justice system. This is because the public can only respect and seek recourse to the law if the law is able to adequately respond to their needs for justice by the victims.

In fact, one of the causes of current problems in South Sudan in most of the States, but, especially three states of cattle-keeping communities is the fact that law has been less responsive to the need for justice of these communities hence leaving citizens with no option but to take the law into their own hands.

In addition, what even makes things worse is the fact that authorities are less accountable and less impartial sometimes. For examples, some authorities are often accused by the civil population of supporting their clan-mates when there is a conflict. This leaves other clans dissatisfied with the government’s performance and especially with the law. The overall result is that the rule of law disappears and insecurity reigns. Therefore, the only way to achieve the rule of law is to ensure that authorities are made more accountable and victims must be allowed to tell the truth of what happened to them in the past and to get redress in terms finances and justice, especially social justice.

b) Reparations.
The government should pay reparations to the victims of violence and crimes.
As it has been observed, reparations play an important role as they belong to the few efforts undertaken directly on behalf of the victims . Nevertheless, reparations need to be closely connected to other processes aiming at documenting and acknowledging truth; otherwise they could be interpreted as being insincere . The need for reparation is underlined by the fact that in African Traditional Justice, there is always a focus for reconciling the victims with the culprits.

As justice was done in African traditional societies, the victims were always at the focus of the justice system meanwhile justice would also try to reconcile the victims with the culprits, unlike the modern justice system offered by courts where justice is only aimed at protecting the interest of the public hence leaving the victims of the crimes in unhelpful position. This tends to cause the disobedience to law as many are less respectful to law since law does not respond to their needs. This is because sometimes the victims might have lost the source of livelihood; hence, there is a need to restore such victims to their previous position, which is the concept of restorative justice.

Restorative justice (also sometimes called reparative justice) is an approach to justice that focuses on the needs of the victims and the offenders, as well as the involved community, instead of satisfying abstract legal principles or punishing the offender. Victims take an active role in the process, while offenders are encouraged to take responsibility for their actions, “to repair the harm they’ve done—by apologizing, returning stolen money, or community service”. Restorative justice involves both victim and offender and focuses on their personal needs.

In addition, it provides help for the offender in order to avoid future offences. It is based on a theory of justice that considers crime and wrongdoing to be an offence against an individual or community, rather than the state. Restorative justice that fosters dialogue between victim and offender shows the highest rates of victim satisfaction and offender accountability. Restorative justice is a form of justice of African Traditional Communities, which is relevant to solving South Sudanese recent conflict.

In the recent conflict in South Sudan, for instance, many people have lost their property in the hands of government in Juba during the December 2013 Conflict, which was replicated in the hands of rebels in Bor, Bentiu and Malakal in 2013 and 2014 respectively. The conflict has led to massive deprivation of personal property among victims which had left them impoverished. The government, therefore, has a sole duty both under the Transitional Constitution, 2011 and under the international law to take up responsibility to compensate those who do not know those who deprived them of their property and to ensure that those culprits known must compensate their victims. The concept of reparations is important if peace building and reconciliation are to be achieved in South Sudan.

c) Institutional reforms.

Institutional reforms are a prerequisite for truth and reconciliation. The court system must be reformed and strengthened to ensure that they are independent in their role of the enforcement of law, which as a result protects the rule of law. In this respect courts are able to provide justice to those who are in need of it. In addition, there is a need for the army reformation. This will help in get professional and efficient army and it will also help to redefine the role of the army.

The role of the army is to protect the nation not individual tribe-mates. In fact, the outbreak of the December 2013 war was due to the fact that the army was made up of unprofessional army officers who joined the army untrained hence became many of them aliened themselves to their tribe-mates more than a nation they became source of insecurity to the nation and acted as a flashpoint of conflict as we have been seeing. The same was and still the case with other organized forces.

The problem with the untrained “organized forces” is that they tend to be more indiscipline and also pay more allegiances to individuals rather than the government itself. Therefore, there is a need for South Sudan to reform all the organized forces, it should also reform courts (both customary and formal courts) if the rule of law, peace building and reconciliation is to be achieved.

In summary, in relation to the institutional reforms, Justice and the rule of law, judiciary and justice ministries; prisons; criminal investigation and prosecution services; human rights commissions and ombudsmen; and customary and traditional justice systems should be established and strengthened to be independently carrying out their works.

The government should form a committee to investigate all root-causes of the past crimes that cause recurrent conflicts, suspicions and misunderstanding among different communities and act on the findings of the investigation accordingly.

According to the conflict transformation theory overcoming ethno-political conflicts in particular society requires more than the reframing of positions. It is therefore necessary to alter the various manifestations of conflict by addressing the root causes, and to focus on structural, behavioural and attitudinal aspects .

There is also a need for balancing peace and justice. A relevant part of the Transitional Justice literature has centred on the dichotomy of peace against justice and truth against justice . In the peace against justice debate, advocates of the legalist approach have emphasized criminal justice as a means to deter future human rights violations and to support peace building . Another argument is that criminal justice will stigmatize the elites who perpetuate conflict, and help separate individual from collective guilt, breaking the cycle of violence .

However, the skeptics of criminal justice doubt whether the criminal justice can achieve all conflict resolution in societies which have been bogged down in the cycle of violence. Some have criticized international criminal justice in particular and argued for domestic prosecutions based on the conviction that justice should follow rather than precede the consolidation of peace .
In earlier debates bargains and amnesties, rather than prosecutions, were often seen as the best ways to achieve peace because of the need to contain ‘spoilers’ in many post-conflict regions . Since then, most advocates of transitional justice have come to reject the idea of impunity and emphasize that amnesties, if applied at all, should be introduced as partial and conditional .

In short, for South Sudan to achieve peace building and reconciliation there is a need for justice because without justice there is no true peace and reconciliation. This implies that South Sudan should recommend to the UN Security Council to establish International Criminal Tribunal for South Sudan (ICTSS) to prosecute those who are accused of having committed international war crimes as provided for under Articles 6, 7 and 8 of the ICC Statute. War crimes, crime against humanity, and sexual slavery have been committed in South Sudanese war and the perpetuators of these horrible crimes cannot be prosecuted through transitional justice. Therefore, there is a need for the establishment of ICTSS.

There is a need for the establishment of interim government. When I talk of interim government I do not mean the formation of new government entirely but I mean the restructuring of the current government so that it can become a new government that can reform the whole system. This implies that the President and his Vice should remain in power to carry out reform while involving all civil population in transformation.

The interim government should have a life span of three years so that it can reform the whole system and implement all recommendations that the National Dialogue Committee and the Peace will recommend to be done in order to achieve lasting peace. The role of the interim government should include the following:

Writing of the permanent constitution of the republic of South Sudan. The Constitution should contain the following democratic elements:
I. Establishing a firm basis for peace and stability;
II. Entrenching the sovereignty of the people;
III. Promoting consensus politics as the basis for decision-making through:

Democratic governance; popular participation in governance by all citizens; decentralization/federalism by stipulating clearly what should be done to achieve it; regular free and fair elections in this regard, the constitution should stipulate the modalities of achieving free and fair elections by discouraging votes rigging and domination by majority over minority; accountability and transparency in the conduct of public affairs; a separation of powers coupled with checks and balances as the basis of government; guaranteeing the independence of the judiciary and establishing effective administration of justice; the upholding, promotion and protection of basic human rights; the promotion and consolidation of national unity and national consciousness through promoting English as a national language; the promotion of socio-economic development; guaranteeing national independence and territorial integrity; fostering Regional, African and International co-operation; provide for direct election of the president, who should be limited to a maximum of two terms in office; and enshrining fundamental rights and freedoms; including special provisions for the rights of women, children, minorities and other disadvantaged and/or marginalized groups; the constitution should also provide for a Leadership Code of Conduct; it should establish an Inspectorate of Government; It should have national objectives and directive principles; it should provide safeguards against arbitrary amendment; the constitution should recognize the army and other security organs as integral organs of the state and society; and it should promoted for the protection of environment.

Apart from the enactment of the new permanent constitution, the interim government should also overhaul the whole system of governance in all states by guiding people in electing the commissioners and governors so that the people are able to elect commissioners of their will and choice.

The interim government should carry out parliamentary elections boss at States and national levels because they MPs elected in 2010 have partly to blame for the failures of the current government. The elections for state governors should also be carried out.

In addition, Riek should not be part of interim government because this will encourage more people to rebel against the government. He should wait for 2018 general elections to contest if he wishes.

The government should also invest more resources in building human power by investing in education and health sector more than any other sectors. This further implies that there is a need for free and compulsory primary education for all children in South Sudan.

The government should also support secondary and university students to ensure that they get quality education not half-baked education which has been one of the current causes of the problems of South Sudan. Education Sudan provided for South Sudanese previously had never emphasized on moral aspects of education but instead it only dealt with political and military aspects of education, which tends to create ruthless politicians who do not care for the needs of other citizens’ yet true education is supposed to emphasize on moral responsibility of every receiver of that education towards the country and its citizens.

This implies that education curriculum for South Sudan should be revised in order to ensure that education adopted emphasizes on knowledge rather than money oriented as has been the case with current education. In addition, education for South Sudan should emphasize on human rights and ethics and gender. They should be introduced in South Sudan syllabus and made compulsory in both secondary and University levels.

There is also a need for the government to establish a special programme for the transformation of the cattle keeping communities. This is because if these communities are not educated and transformed, South Sudan will never be at peace simply because most of them will remain illiterate and as a result they will continue being source of instability in South Sudan; it therefore, worth investing in their social transformation.

This means that the government needs to make primary education compulsory for all the children from cattle-keeping communities and put a closer watch over their progress in Schools. The compulsory education for all children in these communities will help to cut the link between the current generation which is keeping cattle and the next generation that will replace them in ten years to come. This will help to reduce illiteracy among these communities and reduce instability in South Sudan in general.

South Sudan should also establish truth and reconciliation commission to investigate all crimes committed in the Cattle keeping communities to investigate the underlying factors that always act as the source of tensions among them. The violence keeps on escalating because of the underlying factors that have never been unearthed. The truth and reconciliation commission will help to discover these hidden factors and enable the government to act on them accordingly.

This is important because after violent conflicts between ethnic groups like what happened in December 2013 yet these communities remain living next to each other while maintaining their distinct identities, there is likelihood that extremists within both communities are eager to tie responsibility for past crimes and human rights violations to their ethnic adversaries. The truth and reconciliation will help to reduce such tension.

Also, in order to counteract such tendencies, a truth commission is considered as a means “to engage and confront all of society in a painful national dialogue, with serious soul-searching, and attempt to look at the ills within society that make abuses possible”; furthermore “civil society produces a sense of public ownership in this process, so that this dialogue actually leads to something. Otherwise, a country has merely a nice history lesson, destined for the bookshelf” .

An important policy recommendation stems from these reflections, arguing that truth and reconciliation commissions should be established “only where […] a robust civil society remains intact. Where such conditions do not exist, the commission’s mandate should be narrowly focused on documenting the truth along the lines of some earlier commissions rather than on the broader reconciliation goals established more recently. In a context that lacks a civil society altogether, a more top-down approach may be appropriate”.

However, research on truth commissions has also revealed enormous shortcomings and it has become clear that – apart from a strong civil society – there is a need for reliable alliance partners in parliaments, governments and administrations who are willing to engage in institutional reforms and establish the rule of law. Therefore, the government of South Sudan must be able to contribute positively to the establishment of the truth and reconciliation commission and commit itself in executing what it is dictated by the truth and reconciliation Commission upon it to do.

The elections at the presidential level should not be carried out in the near future but should be done after three or four years after the whole transformation has been carried out. This is because carrying out general elections before the reformation will cause more divisions among the people than now because the suspicion is still great. Nevertheless, parliamentary elections in different states should be carried out as a part of democratic reforms in different states.

In addition, the government should review the qualifications of the future MPs. The qualifications should be stipulated in the Constitution and in my opinion every person who contests in parliamentary elections both at states and national levels should be at least a diploma holder from the recognized institutions of learning, or the holder of university degree and above from recognized universities. While at states levels, MPs should at least be holders of O-Level certificate and above. There should be in addition of strong verification mechanisms of those documents.

The above suggestions are important because they absence of social transformation currently is because MPs who are in the parliament are not well-educated and therefore, do not know the importance of development in people’s lives but instead use national resources for personal development a concept that comes with them from their home areas.

Finally, there is an issue of federalism, which many are talking about. What has to be noted about federalism is that federalism is the form of the government, which states are run by the citizens according to the way they think fit. It is an important form of the government that South Sudan should adopt given the diverse nature of South Sudanese Communities. I recommend it.

However, it is not appropriate now to talk it because there is a lot of insecurity and since federalism is the national right for every citizen, there should be an involvement of all citizens of South Sudan in deciding whether South Sudan should be run as it is now or should go for federalism. This means that the people will go for referendum.

Going for referendum means that there is a need for a permanent constitution that will guide people on how to go about referendum. The debate on federalism should not be brought up in peace talk because it is irrelevant. It should only be brought up during the constitutional debate because the constitution after that would be used for conducting referendum on federalism in South Sudan.

In summary, the above suggestions have been put forward for the national dialogue that is going to take place in Juba. They contain important points that can offer permanent solutions to South Sudan problems if they are adopted as they are or modified. It is the belief of the author that the solutions to South Sudanese problems can only be found when the suggestions of the kind made in this discussion are adopted by the government. This stems from the belief that the problems of South Sudan are deeply rooted and structured and therefore needs structured and deep approach.

The Author is a concern citizen and a lawyer from Makerere University and can be reached through the following contacts: juoldaniel@yahoo.com; +256783579256


1 Comment

  1. Ohi'de says:

    Why are you afraid of change? After graduation you develop your people rather than doing nothing in an area full of lawyers.

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.