How The AU Can Promote Transitional Justice In South Sudan
How the AU can promotetransitional justice in South SudanAmanda Lucey and Liezelle KumaloThe African Union is mandated to help South Sudan to ensure accountability for past humanrights abuses through the establishment of a hybrid court. This mandate is derived from theAgreement for the Resolution of Conflict in South Sudan, signed in 2015. The agreement alsomakes provision for a Commission for Truth, Reconciliation and Healing and a Compensation andReparation Authority. In the face of continued violence in South Sudan, how can the African Unionassist in enabling an effective transitional justice strategy for the country?EAST AFRICA REPORT 14 SEPTEMBER 2017
RecommendationsPromote a victim-centredapproach to transitional justice.Insist on a ceasefire inSouth Sudan and promotepsychosocial support as aprecondition for successfulvictim participation.Promote the role of civil society,religious authorities, customarychiefs, the diaspora and themedia in transitional justice.Act as a broker betweenNorthern, Southern andregional partners to ensurecomprehensive, well-fundedand gender-sensitive supportfor transitional justice process.Expedite the establishmentof the hybrid court and aprosecutorial strategy, with afocus on local ownership andnational jurisprudence.Provide African transitionaljustice experts to contribute tothe transitional justice set-up.Building sustainable peace in South Sudan will require a careful balancebetween re-establishing the rule of law, redressing gross human rightsviolations and building an inclusive vision for the future. The ongoing civilwar poses a serious challenge to this process. South Sudan’s latest peaceagreement, the Agreement on the Resolution of the Conflict in South Sudan(ARCISS), makes provision for transitional justice mechanisms, but theseremain at the inception phase.The African Union (AU) is mandated through the ARCISS to support SouthSudan in establishing a hybrid court – a joint effort by the AU and thegovernment of South Sudan, aimed at addressing gross human rightsviolations under international law. The court will be made up of SouthSudanese staff and personnel from other African countries. But transitionaljustice goes beyond the traditional idea of retributive justice, as this reportwill show. The South Sudanese Transitional Government of National Unity(TGoNU) is also mandated to establish a Commission for Truth, Reconciliationand Healing (CTRH) and a Compensation and Reparation Authority (CRA). It isimportant that the TGoNU takes a coordinated approach to transitional justice:how and when these processes are carried out will be vital in determining theirsuccess and ensuring the non-recurrence of violence.Given its understanding of the context and the needfor localised transitional justice solutions, the AU’s roleas a facilitator can now be maximisedPromote a coordinatedapproach between transitionaljustice mechanisms, andemphasise the importanceof reparations.This report1 looks specifically at the role the AU can play in implementing andsupporting a holistic transitional justice process in South Sudan. The AU haslong been involved in the country, and is looking to scale up its support. Givenits understanding of the context and the need for localised transitional justicesolutions, the AU’s role as a facilitator can now be maximised.Encourage context-specificcustomary mechanisms topromote reconciliation.The South Sudanese government and the AU are jointly responsible forensuring justice in the country, in particular through the establishment of ahybrid court. However, if victims’ needs are to be genuinely addressed, wideranging consultations are vital. Transitional justice is most effective when itis victim-centred. Thus the hybrid court must be linked to other transitionaljustice processes, including the CTRH, CRA and traditional reconciliationmechanisms. Civil society should bolster these efforts.Adopt and implement theAfrican Transitional JusticePolicy Framework.Urge member states to ratifythe Malabo Protocol andestablish the African Courtof Justice and Human andPeoples’ Rights.Establish an African Trust Fundfor Victims.2IntroductionEnsuring each of these processes is adequately resourced and supported willrequire a coordinated approach from the variety of stakeholders.The report first provides an overview of South Sudan’s transitional justiceneeds and outlines the AU’s role in transitional justice on the continent,and in South Sudan in particular. It also cites lessons learned from otherAfrican countries that have undergone transitions, with a view to informing aHOW THE AU CAN PROMOTE TRANSITIONAL JUSTICE IN SOUTH SUDAN
transitional justice strategy for South Sudan. The reportthen discusses the challenges and opportunities forimplementing transitional justice processes in termsof the latest peace agreement. It finally makes policyrecommendations on how the AU can implement asuccessful transitional justice strategy in South Sudan.Violence begetting violenceThis report will provide only an overview of South Sudan’scomplex history, as much has already been written onthe topic.2 Suffice to say, the country has witnessedvarious conflicts at different levels – from the local tothe national, with the most recent eruptions of violencestarting in July 2016.3Moreover, accountability for gross human rights violationsis an issue that, until now, has not been addressed.Some violations date back to pre-independence – to thecivil war between the north and south of Sudan in the1970s. In the 1980s the then leader of Sudan, Sadiqal-Mahdi, allowed armed militias free rein in the south.This led to mass killings, enslavement and rape of thesoutherners.4 Resistance grew through the establishmentof the Sudan Liberation Movement/Army (SPLM/A) in1983 by John Garang. A coup by Omar al-Bashir in 1989only led to further repression in the south, with violenceand abuses occurring on both sides.5The civil war was ended through the signing of theComprehensive Peace Agreement (CPA) by the SPLM/Aand al-Bashir’s National Congress Party in 2005. Thisled to the eventual independence of South Sudan in2011. However, none of the atrocities that occurred forover half a century has been addressed or is likely tobe addressed.Some have argued that there was little forward thinkingbeyond gaining South Sudan’s independence, whichhappened in 2011. The SPLM/A, which had been unifiedin its response against the government of Sudan, madelittle provision for how the new state would be governedin terms of power-sharing among the various ethnicgroups or the distribution of wealth, beyond oil.6The CPA was designed to address north–south issuesbut did not look to provide long-lasting political solutions.It was supposed to avoid ethnicising South Sudanesepolitics, but no national identity was subsequentlycultivated or defined,7 and the development of SouthSudan’s constitution was never adequately tackled.8 Assuch, there was never an effort to create a unified nationstate, or redress past human rights violations.Violence broke out in 2013. This was initially seen asa struggle between warring factions – one side loyalto President Salva Kiir and the other to former vicepresident Riek Machar – over the SPLM presidentialcandidacy, but it has increasingly taken on ethniciseddimensions.9 As the international community looked tobuild state institutions, political elites began to exploittribal tensions, ‘where the exclusion of competing tribalgroups from power has become the principal aim ofmany protagonists’.10 While most observers view theconflict as a struggle for power between the Dinka andNuer, it is more complex than this. With over 60 tribes inSouth Sudan, conflict dynamics vary across the country.The hybrid court is an opportunityto show a willingness to actagainst impunityIn 2014 the AU initiated an investigation into grossviolations of human rights. The findings of the AUCommission of Inquiry on South Sudan (AUCISS) reportwere only released a year later, with the AU stating thatit was wary of impeding the peace process. However,the AU was criticised for complacency in delaying therelease of the report – it was argued that its timely releasecould have brought more attention to the suffering inSouth Sudan.11 The report called for a process of nationalhealing and reconciliation, as well as political justice andreparations for victims.12 Its findings pointed to largescale abuses that occurred with impunity.13The report’s recommendations paved the way forexternal stakeholders to push for the inclusion of ahybrid court in the ARCISS – a joint responsibility of theSouth Sudanese government and the AU. The hybridcourt is an opportunity to try leaders for gross humanrights violations and thereby show a willingness to actagainst impunity.However, it is also necessary to redress the underlyingcauses of the conflict, as noted by one of thecommissioners of the AUCISS,14 the eminent AfricanEAST AFRICA REPORT 14 SEPTEMBER 20173
scholar Mahmood Mamdani. Mamdani made a separate submission when thereport was submitted to the AU, stating that the abuses were in fact structuraland political (the report viewed the human rights abuses as criminal actions).He argued that this would require a different type of approach.15As a result, transitional justice mechanisms were integrated into the ARCISS,which was signed in August 2015. Yet the ARCISS was largely ignored byits main signatories (Kiir on behalf on the government and Machar as theSPLM-in-Opposition leader). It also saw differing regional positions amongIntergovernmental Authority on Development (IGAD) member countries, whichare often blamed for aggravating the situation or preventing decisive action.16Previously peaceful states and towns are nowexperiencing violence, with a proliferation of newactors taking up armsThe conflict reignited in July 2016, and South Sudanese civilians continue tobe plagued by widespread insecurity and ongoing violence. Human rightsabuses include enforced disappearances, arbitrary detentions, the beatingand torture of detainees, and extensive sexual violence, especially againstwomen and young girls. These acts have led to scores of deaths and injuries,the displacement of over two million people, loss of livelihood, food insecurityand a mental health crisis in the country.17Previously peaceful states and towns are now experiencing violence, with aproliferation of new actors taking up arms. Conflict dynamics are changing,while localised conflicts that have existed for years add fuel to the fire. Forexample, in Jonglei state the migration of the Lou Nuer to access water andpasture for their cattle is a trigger for interethnic clashes with the Murle.18These conflicts, which used to be resolved in traditional ways, are nowincreasingly being fought with guns.What are South Sudan’s transitional justice needs?The ARCISS arguably did not address the needs of the broader population,thereby further entrenching exclusionary political arrangements. This has ledto the militarisation of ethnic groups that felt excluded from the agreement.19Most recently, Lt. Gen. Thomas Cirillo resigned from his position as deputychief of staff for logistics and formed a new group, the National SalvationFront, with the aim of removing the Kiir regime.2012 July 2017IGAD ANNOUNCED AHIGH-LEVEL REVITALISATIONPROCESS FOR THE ARCISS4A continued lack of accountability speaks to the need for a retributive justiceprocess that will re-establish the rule of law in South Sudan. This would ideallyinclude the domestic prosecution of perpetrators through criminal law.However, the justice system is in disarray; there are only few county courts21and little access to justice. The conflict has eroded core state institutions,including the rule of law infrastructure. There is a lack of trained andHOW THE AU CAN PROMOTE TRANSITIONAL JUSTICE IN SOUTH SUDAN
experienced judges, lawyers and prison staff.22 Manycommunities in South Sudan have little confidence injustice processes, and lack awareness of their legal rightsfive of the ARCISS deals with transitional justice andprovides for the:30or formal legal processes.23 Commission for Truth, Reconciliation and Healing(CTRH)The South Sudan National Police Service (SSNPS) Hybrid Court for South Sudan (HCSS)is responsible for internal security, but there are notenough trained police officers. In most cases competingprivate security companies and ethnically aligned militiasundertake these tasks, meaning that investigations arenot conducted by the relevant government body.24The lack of oversight and accountability in the policeservice has reinforced a culture of impunity for humanrights abuses. It is clear that any efforts to re-establishthe rule of law through transitional criminal justiceprocesses cannot be undertaken by the South Sudanesealone. The SSNPS’s predatory relationship with thecommunity it is meant to serve has further eroded trustbetween state and society,25 and a compact of trustmust be re-established between the government and thegeneral population.The underlying causes of the conflict must be addressed,and economic and psychological redress for victimsis crucial. In addition, more than 4.6 million people arecurrently affected by food insecurity26 while economicgrowth is slow and heavily dependent on oil revenues.27Economic growth is vital for human development, andas long as the people in South Sudan are faced with thistype of daily stressor they are unlikely to heal from thedevastation of the conflict.Transitional justice is thus a crucial factor in SouthSudan’s eventual recovery. It encompasses a range ofprocesses and mechanisms that can be used to promotejustice, accountability, peace and reconciliation.28While in the past there have been some efforts topromote dialogue and reconciliation through traditionaland customary systems, for example in areas such asWunlit, Lilir and Jonglei, these have been localised ratherthan feeding into a national effort.29South Sudan’s current transitionaljustice frameworkAs mentioned above, the 2015 peace deal developed atransitional justice framework for South Sudan. Chapter Compensation and Reparation Authority (CRA)It also makes provision for the lustration (the barring ofabusive and corrupt officials from public office) of thoseconvicted by the hybrid court.31The ARCISS outlines the AU’s role in establishing thehybrid court. The AU has since established a roadmapfor the establishment of the HCSS,32 but this will requiresubstantial funding and support from the internationalcommunity and internally in South Sudan. Regional buy-inis also critical – it has been argued that IGAD’s lead in thepeace talks (carried out under the principle of subsidiarity,whereby regional organisations are the first responders)has held back the AU engagement.33The main stakeholders leading the peacenegotiations, including IGAD, continue topush for the ARCISS’s implementationOn 14 December 2016 Kiir announced the start of aprocess of national dialogues, which he argued wasintended to link ‘political settlements with grassrootsgrievances, redefine unity, address issues of diversity,agree on a mechanism for sharing resources andenhance reconciliation’, among others.34Donors are divided on whether this is an attempt todeflect attention from the peace agreement,35 while theAU has recognised that the national dialogues, if carriedout legitimately, could be a critical initiative for resolvingSouth Sudan’s challenges.36 This process is nowunderway, and Kiir has sworn in the steering committeeand declared a unilateral ceasefire.37Meanwhile, the main stakeholders leading the peacenegotiations, including IGAD, continue to push for theARCISS’s implementation. On 12 June 2017 IGADreleased a communiqué reaffirming this support.38 On 19June the European Union (EU) – an active monitor of anddonor to the ARCISS – urged the AU to move forwardEAST AFRICA REPORT 14 SEPTEMBER 20175
with the establishment of the hybrid court. It also welcomed the recentextension of the mandate of the United Nations (UN) Commission on HumanRights in South Sudan (UN Resolution 34/25), which will continue to collectand preserve evidence of human rights violations.39For its part, the AU has welcomed a decision by IGAD to convene a High-levelRevitalization Forum of the Parties to the ARCISS.40Clearly, there is a strong moral imperative to put an end to the violence.South Sudan’s multi-layered history means that therecannot be a one-size-fits-all approach. Determining theparameters for transitional justice will be difficultDonors are tiring of providing support to South Sudan amid continuedcorruption, mismanagement and ethnic polarisation by elites. Transitionaljustice is therefore imperative. But, as noted above, South Sudan’s multilayered history means that there cannot be a one-size-fits-all approach.Determining the parameters for transitional justice will be difficult. Whatshould be the starting and cut-off dates for investigations and truth telling?How will consultations consider regional dynamics and influences?Should there be localised reconciliation processes that build on differentcustomary approaches?The AU’s transitional justice mandateIn addition to the AU’s mandate in the ARCISS, the organisation has a moraland legal responsibility to ensure justice on the African continent. The AU hasstated that the ARCISS is the only viable option to address the numerouschallenges in South Sudan. It has also said that the national dialogues shouldpave the way for healing, reconciliation and justice.41 Given the limited fundingavailable, the national dialogues should be an entry point for transitional justicein South Sudan.It should be noted that the AU’s rejection of impunity is derived from itsConstitutive Act (2000) Article 4 (o), which emphasises ‘respect for thesanctity of human life, condemnation and rejection of impunity and politicalassassinations, acts of terrorism and subversive activities’.42 South Sudanacceded to the Constitutive Act on 27 July 2011, when it became the 54thmember state of the AU.43SOUTH SUDAN ACCEDEDTO THE CONSTITUTIVE ACTON 27 JULY 2011, WHEN ITBECAME THE 54TH MEMBERSTATE OF THE AU6The issue of accountability is somewhat controversial. In recent years, somecountries, such as South Africa and Burundi, have criticised the InternationalCriminal Court (ICC), alleging that it is unfairly biased against African states.44The AU has supported this stance, while adding that this ‘must not beconstrued as blanket opposition to justice but rather as recognition thatimposing justice while ignoring legitimate African concerns may be detrimentalto justice’.45HOW THE AU CAN PROMOTE TRANSITIONAL JUSTICE IN SOUTH SUDAN
The AU and its member states have been reluctant toindict sitting heads of state, for reasons of ‘stability’,46as in the case of the Special Tribunal for Sudan.However, this is changing. Sierra Leone’s Special Courtsuccessfully prosecuted former Liberian presidentCharles Taylor, and the International Criminal Tribunal forRwanda (ICTR) found former Rwandan prime ministerJean Kambanda guilty of crimes relating to genocide.47Moreover, the conviction of former Chadian dictatorHissène Habré at the Extraordinary African Chambers inthe courts of Senegal in May 2016 was the first time adomestic court of another African country found a formerhead of state guilty of crimes against humanity.48In July 2014 the AU adopted the Malabo Protocol, whichexpanded the jurisdiction of the African Court of Justiceand Human and Peoples’ Rights to include internationalcrimes. Nine countries had ratified the protocol as ofMay 201749 – 15 ratifications are required for it to enterinto force.50The AU has also developed the draft African TransitionalJustice Framework (ATJF), which recognises that Africancountries have to fight impunity, promote accountability,and foster reconciliation and social healing.51 TheATJF has not yet been adopted, but will be critical in
The report first provides an overview of South Sudan’s transitional justice needs and outlines the AU’s role in transitional justice on the continent, and in South Sudan in particular.
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