Key Actors and Institutions of TGoNU: The Judiciary and Transitional Justice (Part 2)
By David Mayen Ayarbior, Juba, South Sudan
June 29, 2016 (SSB) — In the last article under the heading above I enumerated a number of institutions which I thought would be central to our transition to a politically and economically stable country. I mentioned the military, especially its DDRC implementing organs as being at the heart of the transition. Because security is the most important component of statecraft, reducing the size of our military (improving the capacity of those that remain) and integrating those that are demobilized into productive industries would allow them to start a new life far away from extortion and banditry. Liberia and Sierra Leon have undertaking DDR successfully, so can South Sudan.
I also mentioned the Judiciary and Legislature for their important oversight role in creating a country under the law. The two institutions play complementary roles in ensuring the supremacy of the rule of law- in contrast to the rule man (and woman). The legislature shall have a central oversight role in making sure that Ministers present their quarterly reports to parliament for scrutiny and approval or disapproval. They collectively have the right to pass a vote of no confidence on Ministers or Chairpersons of Commissions who underperform. If parliament is not unduly politicized, which is a big if, then the level of its effectiveness could be the main yardstick with which to measure the prospects of TGoNU.
As for the judiciary, it has already had its work cut out in terms of enforcing transitional justice and human rights. Not all post-conflict settings have required transitional justice, but that depended on the magnitude of the human rights violations in each case. Since the laws of war (in the 4th Geneva Convention) were promulgated, what is now referred to as “the new world order” has placed so much emphases on enforcing those laws as a matter of deterrence. In its practice, transitional justice has actually developed overtime into an all-encompassing concept which has transcended accountability ( for war crimes and crimes against humanity) to include peace and reconciliation among victims and between societies.
Some South Sudanese judges shall be part and parcel of the proposed hybrid court for South Sudan. The current debate on whether it should or should not be established has always existed in societies that have come under the jurisdiction of such courts. In Africa, the cases of South Africa (Truth and Reconciliation Commission) and Rwanda (Tribunal) are handy ones for reference. Internationally, the International Criminal Court (ICC) is slowly developing teeth. The International Tribunal for the Former Yugoslavia tried those who violated the laws of war – killed, rapped, and tortured noncombatants (civilians). Many cases abound, but just to drive the point home: there is a new world order which assigns individual (command) responsibility over [civil] war crimes and crimes against humanity and the two parties to the IGAD-plus agreement have voluntarily (strangely) accepted to come under the jurisdiction of that order.
In such a situation where a country finds itself under international jurisdiction, its judiciary is caught between the rock and the deep blue sea. In Africa in particular, where conflicts take ethnic dimensions, elites in warring ethnic groups tend to aim at protecting their own kinsmen by threatening liberal judges who support internationally-driven justice over country-driven truth and reconciliation. The latter is often deemed as compatible with sovereignty while the former is considered as a manifestation of colonialism. The difficulty is in the fact that both arguments could carry some logic and are worth considering, but the victims are often waiting helplessly in the middle for whatever political conclusion is made. If they are asked to reconcile they reconciled; if they are just compensated they received the compensation, and if those who are responsible for turning their lives to hell are accounted for their crimes- so be it. They (victims) simply have had no choice but to just hope for recollecting what remains in their shattered lives.
Now that the UN Security Council has decided that truth and reconciliation alone shall not work in the case of South Sudan, and the two parties in TGoNU accepted a war crimes tribunal, our judiciary shall have a crucial role to play in terms of effectively defending those who will be brought to the dock to answer for accusations of war crimes and crimes against humanity. As a trainee in international human rights law and advocacy, I can say with authority that there is an uphill task awaiting the judiciary of South Sudan. Those who will be at the hybrid court or on defense panels will have their names known in the country’s judiciary for generations for whatever stands they are going to take.
For good or bad, the strength of the two institutions above, legislature and judiciary, will be measured at the end of our transition to democracy. They should neither be dummies of unfair international justice procedures which could victimize the innocent, nor be instruments of impunity. Generally speaking, they may be the key drivers on the country’s path to becoming another example of a successful transition in Africa. Again, their role in TGoNU is to entrench the rule of law; and entrenching the rule of law is the strongest deterrent to conflict recurrence in all post-conflict nation-states.
In conclusion, for me, the main four concepts that will be key to the debate on transitional justice shall be: sovereignty, justice, reconciliation, and stability. Leading questions are often asked on which of the four is most important, so that naïve (unsuspecting) citizens would automatically select stability. But one wonders whether the existing effective mechanisms to combine them (like in Rwanda) should be ignored in favour of one. The people will have to be convinced whether they are mutually exclusive.
The people expect concept papers on the issue of transitional justice in South Sudan from rule of law institutions. As they contemplate on those concepts, they should be mindful of one important reality (which all lawyers know): the rule of law is like a knife. On one hand, it could be used for beneficiary surgery to save lives. On the other hand, it could be used for murder. The difficult and historic choice will be theirs to make.
Mayen Ayarbior has a Bachelor Degree in Economics and Political Science from Kampala International University (Uganda), Masters in International Security from JKSIS-University of Denver (USA), and Bachelor of Laws (LLB) from the University of London. He is the author of “House of War (Civil War and State Failure in Africa) 2013” and currently the Press Secretary/ Spokesperson in the Office of South Sudan’s Vice President, H.E. James Wani Igga. You can reach him via his email address: mayen.ayarbior@gmail.com.
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