Achievements and Failures: The Institutional and Judicial Reforms Agenda of the ARCSS
By Tong Kot Kuocnin, Nairobi, Kenya
Monday, May 21, 2018 (PW) — Since the establishment of the government of Southern Sudan in 2005 following the signing of the Comprehensive Peace Agreement, South Sudan failed to embark on extensive judicial reforms with a rigorous process of impartial and non-partisan appointment of the Chief Justice, justices, judges and other judicial officers where applicants should have been publicly interviewed by a revamped Judicial Service Council (JSC). Subsequently, parliament should have vetted and passed the nominees before full appointment by the President.
However, as I always share different and contending opinion, my contention has always been that, the effectiveness of judicial reforms depends on wider reforms in the entire justice sector. This would include critical stakeholders, such as, the prosecuting authorities, penal institutions and the police – and even the executive and parliament which put forward and approve budgetary allocations.
This is to ensure that complementary reforms are taking place within all those other institutions in order to ensure effective and timely delivery of justice. Since 2005 to date, weak institutional culture and structural impediments have stood in the way of judicial reforms, but this should not be allowed to retard efforts to implement an ‘ambitious plan to make the courts more efficient and open, increase professionalism, and expand the court system’ if at all the judiciary leadership was willing to undertake much needed reforms.
The process of judicial reforms has to revamp an opaque system, many of whose members have historically had strong senses of entitlement as liberators of the country. These reforms, should aim at overcoming internal resistance, strengthening weak accountability mechanisms, and finding the necessary resources in order to stir forward the reforms sought.
Another key component of judicial reforms is structuring judicial accountability. Accountability is a particularly tough challenge because many South Sudanese do not understand how the court system works. Thus, for such institutional and judicial reforms to take root, users of the justice system – whether lawyers or everyday citizens – have to understand how the courts should function and demand that judicial officers deliver quality judicial services. This requires high and consistent levels of sensitization.
The Compromise Peace Agreement commonly referred to as the ‘The Agreement on the Resolution of the Conflict in the Republic of South Sudan (2015) contains key fundamental recommendations in justice sector reforms. Access to justice has been pointed out as the first pillar and key result area. This should ‘encompass such actions as the establishment of the Hybrid Court for South Sudan to try those who bear greatest responsibility of the atrocities during the conflict.
The establishment of an independent judicial body to known as ‘hybrid court for South Sudan came as a result of disregard of the laws and customs of war resulting to a serious violation of human rights and fundamental freedoms.
The court, according to the terms of the ARCSS, shall have jurisdiction with respect to genocide, crimes against humanity and war crimes as well as other serious crimes under international law and relevant laws of the Republic of south Sudan including gender based crimes and sexual violence.
This entails, in part, an attempt to in this regard break the ‘traditional refrain of the soldier and the bureaucrat that “I was only doing my duty” is no longer an acceptable ground for abrogating the rights of humanity in the person of the other’ as much of the power of government is exercised by the president through bureaucrats who regulate the daily lives of citizens and therefore exercise broad delegated powers.
Thus, inspiring public confidence in the redress of grievances, human rights violations and various forms of injustices obtainable through legitimate means within known structures and predictable processes is important in the consolidation of peace in South Sudan.
Legitimate structures for peaceful settlement of disputes and fair administration of justice within strong democratic institutions of governance are amenable to peace consolidation only if these institutions are transparent, accountable and non-corrupt and the power isn’t absolutely control by the elite heading the institution.
This has hitherto been tested that States with high institutional quality are less likely to experience civil war or conflict due to their responsiveness to the needs of their citizens; whereas those with low quality institutions can lose the loyalty and support of their citizens, and consequently fall prey to violent conflicts. This has been our challenge since the inception of the then government of Southern Sudan in 2005.
As already said, peace, stability, and development are more likely to happen in countries with strong democratic institutions not held hostage by the few elites who wields an absolute power, not only because they are inclined towards upholding justice, human rights, equality and the rule of law, but due to the high level of political inclusivity, respect for human rights and fundamental freedoms they exude.
Achievements
Since weak or lack of strong institutions is not only the cause of state failure to prevent human rights violations but also the reason that state power is used to perpetrate injustices. It is to be underscored here that there are no much achievements made thus far by the current government since the signing of the Peace Agreement in August 2015.
The institutional reforms sought as enshrined in the agreement remains largely an untenable dream as there exist a serious lack of political will to undertake such reforms as these reforms predictably brings unwarranted and an unexpected complete change and overhaul of the current dysfunctional system.
Strong democratic institutions are remedial and can facilitate the movement from instability to stability; from human rights violations to a situation where such rights are universally upheld, respected and protected.
The economic reforms as stipulated in the agreement remains on the paper to be realize as the government took no attempt to institute such reforms as required by the agreement.
The spirit of the agreement hasn’t been implemented as expected as the leadership of the country indulge in mockery not only of its citizens but equally to the region which brokered the agreement and the international at large.
Failures
In terms of implementation progress, leaders in South Sudan have not been moving as fast as expected when their progress is measured against the milestones stipulated in the ARCSS.
The leaders in Juba should be credited for managing to form the TGoNU, as well as constituting the Council of Ministers in April 2016, as provided for in the ARCSS. But it is sad to say that they have not started establishing the necessary institutions of governance provided for in the ARCSS.
However, the implementation of other provisions of the ARCSS has been slow, poor and above all, not been implemented as FVP Taban Deng Gai, who took over the leadership of SPLM-IO after the June 2016 J1 incident was only working to appease his BOSS.
Not only that, there has been slow implementation of the ARCSS as evidenced by the delays in the formation and reconstitution of transitional institutions and mechanisms, provided for under Chapter 1 (14.1) of the agreement which include, inter alia, the institutions such as the Commission for Truth, Reconciliation and Healing (CTRH); Hybrid Court for South Sudan (HCSS); CRA; and the Board of the Special Reconstruction Fund (BSRF). All these have not yet been established – yet most were supposed to be in place within the first month of the TGoNU, as provided in the ARCSS.
The slow progress recorded in implementing the ARCSS is one of the main causes of this return to violence. Political will has also been singled out by the JMEC as one of the key factors behind this limited implementation progress.
The fact that key signatories to the peace deal – specifically Kiir – signed the peace pact with many reservations, obviously has a bearing on his will and commitment to the agreement. This, however, does not in any way downplay the other factors contributing to the limited progress in implementing the ARCSS – notably the struggle for power and control between SPLM/A-IG and SPLM/A-IO leaders Kiir and Machar; the exclusion of other stakeholders to the conflict in the ARCSS negotiation process; and nation-building complexities that naturally face the South Sudanese, as the state is still in its formative stages with very little institutional infrastructure to anchor governance and other systems.
Conclusion
This article therefore accentuates the need to have robust institutional reforms as the basis for institutional and judicial reform mechanisms to avoid replication of failure of institutional and judicial reform measures as South Sudan is still trapped in violence and political uncertainty.
South Sudan should relentlessly embark on the path of reforming structures of governance through designing institutions responsive to current demands of peacebuilding, reconciliation, and national cohesion.
To surmount such challenges, the inevitability of institutional reforms comes to bear since the process largely depends on the nature of government and democratic institutions in place in the country. There is a need to exert more pressure to procure workable political will to institute such reforms.
Thus, this article maintains that strengthening of institutions, as a strategy of peacebuilding, is most likely through implementation of various judicial reforms mechanisms. Such mechanisms should aim at confronting the past, ending injustices, fostering reconciliation, redressing the victims, ending the culture of impunity and building structures that can prevent recurrence of past injustices.
The author holds Bachelor of Laws (LLB) Degree from the University of Juba and a Master of Laws (LLM) specializing in Law, Governance and Democracy from the University of Nairobi. He an advocate before all courts and his areas of research interest are: constitutional law and human rights, access to justice and transitional justice, rule of law and good governance. You can reach him via his email: Bullen Tong <tongbullen@gmail.com>
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