East Africa Should Back Justice for South Sudan: Neighboring Countries Should Support Hybrid Court

[Audrey Wabwire is A Nairobi-based media manager at Human Rights Watch.]

What’s the path to justice after years of conflict, during which widespread atrocities were committed? This is a question that South Sudan, the world’s youngest country, confronts. After nearly seven years of conflict ended with the signing of a peace deal in September 2018, South Sudan finally established a transitional national unity government earlier this year. But the country is yet to set up mechanisms through which victims of the conflict could find justice.

The 2013 conflict was preceded by simmering, unresolved political discord between President Salva Kiir, Dr. Riek Machar, then his his vice president,  and other leaders within the ruling party. The months of political tension between them ultimately escalated to hostilities and a devastating conflict between forces loyal to the president and those loyal to the former vice president. As the conflict waged across the country, many warring parties and their proxies committed grievous crimes, some of which targeted entire communities of civilians.

As one of seven member states of the Intergovernmental Authority on Development (IGAD),  Ethiopia hosted lengthy peace negotiations that resulted in numerous ceasefires and a final peace deal in August 2015. However not all parties were satisfied with the way forward and by July 2016 fighting had resumed, spreading to the southern part of the country and creating new armed groups with varying grievances.

The conflict displaced millions, killed hundreds of thousands, destroyed food stocks and sources as well as other property causing a humanitarian crisis in the region. IGAD, with other international support, re-convened peace negotiations in 2017, leading to the signing of the 2018 “Revitalized” peace deal. This notable support by neighboring countries indicates what the international community is capable of doing for South Sudan.

The 2018 peace deal, like the 2015 one before it, provides for the creation of accountability mechanisms, including a commission for truth, reconciliation and healing, a compensation and reparations authority, and a Hybrid Court for South Sudan. The hybrid  would be staffed by South Sudanese and other African personnel, with the overall selection of personnel overseen by the African Union Commission. This is a model that offers victims of serious crimes an opportunity for redress. Its successful establishment would also signalthe AU’s commitment to justice and peace, and would  be a concrete step toward achieving the AU’s Agenda 2063, the institution’s master plan for democratic governance and sustainable development.

Reckoning with the impact of the tumultuous conflict will not be easy, and impunity for egregious abuses largely prevails. All parties to the conflict used abusive tactics, targeting and killing civilians, including older people, those with disabilities, women, and children — in their homes, in hospitals, and in United Nations compounds. The armed factions even  attacked workers delivering humanitarian aid.

The lack of justice for past violations in South Sudan has had far-reaching consequences. It has fueled crimes in the current conflict and deprived victims of their rights. The unaddressed conflict-related abuses and a breakdown in the rule of law has contributed to an escalation of violence at local levels in Jonglei, Lakes, and parts of Northern Bar el Ghazal states in South Sudan. A judicial process that’s perceived to be impartial and progressive can help stop the cycle of violence, build respect for rule of law, open a new chapter for the country, and build the public’s trust and confidence in the government’s will to deliver justice to the victims and protect its citizens.

Activists have long campaigned for the establishment of accountability mechanisms by the AU and South Sudan. Jame Kolok, executive director at a local human rights monitoring organization, Foundation for Democracy and Governance, told me, “There are accumulated human rights violations in South Sudan since 2013. How can we move forward without addressing these? It’s the hybrid court that can show that it is no longer business as usual, that the victims will can get justice.”

In 2017, the AU and the South Sudan Ministry of Justice drafted an agreement between South Sudan and the AU about the court and a court statute. This process was intended to set the ball rolling for  the creation of the court. But the process stalled once the documents were presented to South Sudan’s Cabinet. South Sudan has not yet taken  meaningful steps to create  the mechanisms for truth, healing and reconciliation commission, and reparations, in addition to the hybrid court. This delay is unacceptable for the many South Sudanese whose lives have been shattered by the conflict and who continue to wait for accountability.

But South Sudanese leaders have reasons to fear the reach of justice given that they are implicated in many of the abuses. It would be overly  optimistic to expect them to be  eager to  initiate a justice process that could extend to themselves.

This is why South Sudan’s neighbors – individually and through bodies such as IGAD and the East African Community (EAC)- should step up for the victims and insist that the hybrid court be established without further delay.

The EAC is a regional body consisting of South Sudan, Uganda, Tanzania, Rwanda, Burundi and Kenya. The community has prioritized economic integration, and has further discussed good governance as an important component for region. In this respect, South Sudan’s accountability processes are not only vital within its borders but for the EAC and the AU. For long term growth, justice for victims and surivors is essential.

As with the peace deals, regional actors can champion the nation-building process founded on truth and justice. However, the silence from neighboring states regarding justice in South Sudan is contributing to the problem. Some South Sudan watchers believe that the lack of interest in justice in South Sudan among EAC members is due to caution against opening a whole set of unwanted discussions regionally.

“Setting up a hybrid court in South Sudan would mean Kenya would have to start thinking about its own (2008) post-election issues, and Uganda would need to be thinking about its LRA issues, ” referring to the deadly rebel group, the Lord’s Resistence Army, Jackline Nasiwa, director of the Center for Inclusive Governance, Peace and Justice recently told me in an interview. The result, she said,  is an environment of silence from regional partners who seem to be turning a blind eye to the problem.

Neighboring countries are bound by the African Charter on Democracy, Elections and Governance, which provides that states should support conflict resolution initiatives undertaken by the AU, and one of the pillars of the draft East African Community Protocol on Good Governance is access to justice. Further, the EAC  Conflict Management Act of 2012 created a panel that, among other duties, promotes the peaceful resolution of conflicts. This law requires member states to co-ordinate post-conflict management. The framework provides an opportunity for EAC members to support accountability for abuses in South Sudan as an effort to quell retaliation resulting from unadressed injustices.

The 2017-2012 EAC priorities such as promoting regional security and good governance and regional economic cooperation  can benefit the post-conflict judicial process in South Sudan. Greater adherence to and respect for rule of law can lead to economic gains for the region, and by taking the lead in convening a donors’ meeting to mobilize resources for the court, Kenya could support both justice in South Sudan and economic benefits within and beyond the country.

As 2020 draws to a close, EAC members are planning for the next AU session with regional economic blocs, set for mid 2021. The EAC should use their planning sessions to strategize on how to push for an assessment of progress made in getting the hybrid court up and running and steps to see further progress.

If this regional body is to live up to the principles of the African Charter on Democracy, Elections and Good Governance and the EAC Treaty, such as good governance through accountability, it should lead the way in pushing for the creation of the hybrid court, and the truth and reparations bodies. South Sudan victims have waited too long. They deserve justice.