R-ARCSS: Links between South Sudan’s General Elections and Transitional Justice

By Roger Alfred Yoron Modi, Nairobi, Kenya

Thursday, January 27, 2022 (PW) — President Salva Kiir’s announcement that South Sudan’s General Elections will be held in 2023 continues to be cited, with highlights that other members of the Presidency and the parties to the R-ARCSS are yet to agree on an electoral timetable. Concerns regarding technicalities in the R-ARCSS to allow for free, fair, and credible elections have been expressed, and this year, there is a need for more concurrent activities across all chapters of the Agreement. What also needs more focus is the links between the transitional justice mechanisms in the R-ARCSS and the success of the general elections provided for in the Agreement.

In his New Year’s Message, President Kiir said the government will be embarking on the process of establishing the Commission for Truth, Reconciliation, and Healing (CTRH) by the end of this month.  “It is important to initiate this process so that our people can know the truth about what took place during the war and use it as the basis for peacebuilding, reconciliation, and social stability,” he said.

Earlier mid-last month, key stakeholders to transitional justice processes in South Sudan adopted a “joint strategy and plan of action to accelerate the implementation of existing commitments under the 2018 Revitalised Peace Agreement” at the “Conference on sustaining momentum for transitional justice in South Sudan,” held virtually and in Nairobi. The Conference was initiated by the United Nations Commission on Human Rights in South Sudan, the Commission mandated by the UN Human Rights Council to monitor the human rights situation in South Sudan and to support the implementation of its transitional justice program. Participants included representatives of the Revitalised Transitional Government of National Unity of the Republic of South Sudan; the Transitional Justice Working Group representing civil society and victims’ groups; the Reconstituted Joint Monitoring and Evaluation Commission, and delegates of the African Union and the UN system.

Yasmin Sooka, the chairperson of the Commission on Human Rights in South Sudan

opened the Conference by identifying the centrality of transitional justice processes to peace and nation-building, stating that “Transitional justice is about truth recovery, accountability, reparations for survivors, and institutional reform. If done well, this has the potential to restore the trust of South Sudanese people in the State, and to signal the government’s commitment to work for all its people, irrespective of ethnic identity,”

“A core theme throughout presentations and discussions was the need to restore the fabric of South Sudanese society by building a culture of accountability in the country. Participants emphasised the need to create an enabling environment for meaningful dialogue and the participation of the public and victims in justice processes, by expanding and guaranteeing civic space, and paying attention to witness protection and security, among other things,” a publication by the UN Human Rights Council about the Conference reads.

“Other key needs discussed were for: the country’s diversity to be reflected in each step of all processes; adequate funding and resources to be allocated for implementation prioritizing institutional and constitutional reform; prioritization of reparations; strengthening of domestic justice systems, including military justice mechanisms; harnessing the contribution of traditional justice; engaging with actors who are not a party to current peace and political arrangements, including military and security actors; and better coordination between the AU and government.”  A report with further details will be published in early 2022, the publication says.

An important observation made by Beny Gideon Mabor, Esq, Commissioner, South Sudan Human Rights Commission,  is the need for a clear line of communication and engagement strategy between the Revitalized Transitional Government of National Unity and the African Union organs to achieve the implementation of transitional justice.

The government and the African Union did not move forward with the establishment of the Hybrid Court, one of the Transitional Justice Mechanisms provided for in the ARCSS of 2015, and relating to that, came last year’s report that the U.S. State Department “signaled it is planning to reallocate most of the $5 million in funding it had earmarked for the court, sending some back to the U.S. Treasury and another portion to other programs in South Sudan.”

“The decision to take back the money reflects mounting frustration with South Sudanese President Kiir Salva Kiir Mayardit, who recently claimed the court is unnecessary, as well as with his chief rival, Vice President Riek Machar,” the report by Foreign Policy says, “But it also reflects a certain exasperation with the African Union (AU), which played a critical role in advocating for a regional tribunal to be staffed by AU and South Sudanese lawyers and judges.” The AU- which has the authority to set up the court- has been reluctant to move ahead without buy-in from South Sudanese parties.”

The Hybrid Court for South Sudan shall be established by the African Union Commission to investigate and, where necessary, prosecute individuals bearing responsibility for violations of international law and/or applicable South Sudanese law,  committed from December 15th, 2013 through the end of the Transitional Period. The R-ARCSS says the hybrid court shall have jurisdiction with respect to the following crimes: 1- Genocide; 2-Crimes Against Humanity; 3-War Crimes Other serious crimes under international law and relevant laws of the Republic of South Sudan, including gender-based crimes and sexual violence, are also included.

One issue is the introduction in the R-ARCSS of the words “where necessary”, which did not exist in the ARCSS and has now left it vague on how that necessity shall be determined and by whom.

However, the need to establish the hybrid court together with the rest of the transitional justice mechanisms continues to be expressed by many South Sudanese. 

Also in October 2020, in the Sant’Egidio led process, during the discussions of the Declaration of Principles between the Revitalized Transitional Government of National Unity and the South Sudan Opposition Movement Alliance,  the need “to establish a hybrid court to hold accountable those who committed crimes” and “a forum for reconciliation and forgiveness” were also mentioned. Therefore, in addition to that, the expressions that the term of the revitalized government (transitional period) not be extended, and concerns regarding technical preparations in the R-ARCSS to allow for free, fair and credible elections, and that this year, there is a need for more concurrent activities across all chapters of the Agreement, the importance of the Transitional Justice Mechanisms on the conduct of the general elections and possible implications thereafter, including on peace, also needs a focus.

As aptly stated by Samuel G. Doe, “By its very nature, the Commission for Truth, Reconciliation, and Healing (CTRH) will enable the country to acknowledge its past violence; help the truth to be known publicly; enable justice to be done, and support victims and society to move beyond the painful past into a united and peaceful future. In turn, it will signal the way forward to ensure grave violations of human rights never happen again.”

“For the people of South Sudan, reconciliation can be restorative and empowering; it brings out the best in people, communities, and societies. From a place of truth, rifts can begin to heal, and we can look towards the South Sudan we want to build together in the years to come,” he added.

Last September, in a statement to the 48th Session of the Human Rights Council, Sooka said her Commission’s confidential list of perpetrators now totals 104 individuals with a command or superior responsibility and continues to grow to support future accountability processes, including criminal prosecutions.

According to the R-ARCSS, the terms establishing the Hybrid Court for South Sudan HCSS shall conform to the terms of the R-ARCSS and that the African Union Commission shall “provide broad guidelines relating to, including the location of the HCSS, its infrastructure, funding mechanisms, enforcement mechanisms, the applicable jurisprudence, number and composition of judges, privileges and immunities of court personnel, or any other related matters.”  Article 5.3.1.3. says the Chairperson of the AUC shall decide the seat of the HCSS.

About elections, last year, the United Nations Secretary-General Antonio Guterres, submitted his letter to the President of the Security Council pursuant to Security Council resolution 2567 (2021), in which the Secretary-General is requested, in accordance with best practices, to conduct and provide the Security Council with a needs assessment, including security, procedural and logistical requirements to create an enabling environment for elections in South Sudan.

“Concerning the electoral timeline, the assessment team recommends that, within two years prior to the holding of elections, progress be made on (a) an agreement on the legal and security framework for elections, including the electoral system, boundary delimitation, special measures for internally displaced persons, refugees, out-of-country voting, dispute resolution mechanisms and election observation, as well as on the type and level of elections to be held; (b) an agreement on the composition and functioning of the National Election Commission and the designation of its members, both in Juba and at the sub-national level; and (c) the allocation of resources for the operating costs of the National Election Commission and a budget for elections operations,” partly reads the Secretary-General’s summary (of Annex to the Letter) for the Security Council, “The parties to the peace process will likely rely on the assistance of the United Nations, the African Union, the Intergovernmental Authority on Development, the Troika (the United States of America, the United Kingdom of Great Britain and Northern Ireland and Norway), the European Union and others to move forward. The ongoing cooperation to support the implementation of the peace agreement will assume even greater importance in the context of elections. The electoral needs assessment team noted that the United Nations Mission in South Sudan (UNMISS) is uniquely placed to play a coordinating role amongst regional and international partners and ensure an effective alignment of good offices and technical assistance.”

Conclusions

While the R-ARCSS itself is not perfect and improvements to it are possible, including through the ongoing processes with its non-signatories and without necessarily extending the term of the transitional government or extending it unreasonably, concurrent activities should go on, harmonizing the processes. The credibility of transitional justice will go a long way into building a just, reconciled and peaceful country,  avoiding a revert to armed conflict that may be related to elections and R-ARCSS implementation or when grievances that the processes sought resolve remain unresolved.

Roger Alfred Yoron Modi, a South Sudanese journalist, is the author of the book Freedom of Expression and Media Laws in South Sudan.  He is also the Producer and Host of The Weekly Review: Making Sense of Relevant Topics and News. For more, keep in touch with his website rogeryoronmodi.com

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