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MAKING TRANSITIONAL JUSTICE HAPPEN

MAKING TRANSITIONAL JUSTICE HAPPEN

PATHWAY FROM CONFLICT TO PEACE OBSERVATION REPORT

ON

STATE COMMITMENT AND COMPLIANCE FOR TRANSITIONAL JUSTICE.

 

  1. BRIEF BACKGROUND

Chapter five of the Revitalized Agreement on the Resolution of conflict in South Sudan signed on September 2018 in the Ethiopian Capital Addis Ababa offers deliverance of Transitional Justice in three spheres; first: Commission on Truth, National Healing and Reconciliation, second: Hybrid Court and third Compensation and Reparation Authority. These three forms of Transitional Justice were meant to be a pathway of taking the society of South Sudan from conflict to peace.  Per the provisions of the agreement in chapter, these mechanisms were supposed to be established by Agreement on the Resolution of the conflict in South Sudan. Transitional justice viewed by majority of the citizens as central process for creating durable/lasting peace in the country.

 

  1. SUMMARY INFORMATION ON TRANSITIONAL JUSTICE PER THE PROVISIONS OF THE AGREEMENT ON THE RESOLUTION OF CONFLICT IN SOUTH SUDAN

 

  1. Chapter V: TRANSITIONAL JUSTICE, ACCOUNTABILITY, RECONCILIATION AND HEALING.
  1. The TGoNU shall establish three Transitional Justice institutions: The Commission for Truth, Reconciliation and Healing (CTRH); The Hybrid Court for South Sudan (HCSS); and the Compensation and Reparation Authority (CRA).
  2. The CTRH will establish an “accurate and impartial historical record of human rights violations, breaches of the rule of law and excessive abuses of power” committed by state and non-state actors.
  3. The CTRH will supervise traditional dispute resolution and reconciliation mechanisms.
  4. The AU Commission will establish the Hybrid Court and decide its guidelines for operation, infrastructure etc. and The AU Chairperson will decide where the court is located.
  5. The HCSS will have jurisdiction over crimes committed since 15thDecember 2013, including genocide, crimes against humanity, war crimes, and other serious crimes such as Gender based crimes and Sexual Violence.
  6. No one shall be exempted from criminal responsibility on account of their official capacity as a government official or an elected official.
  7. The Hybrid Court will be chaired by a prominent African personality appointed by IGAD Heads of State in consultation with IGAD Plus members.
  8. The majority of the Hybrid Court's judges, prosecutors and legal counsels will be Africans (non-South Sudanese) and they will be selected and appointed by the AU Commission Chairperson. 
  9. Individuals indicted or convicted by the Hybrid Court will not be eligible for participation in the TGoNU or its successor governments. 
  10. The CRA shall provide material and financial support to citizens whose property was destroyed by the conflict and manage the Compensation and Reparation Fund.
  1. OVERALL GOAL: Advocating for deliverance of Transitional Justice in South Sudan
  2. PURPOSE OF THE REPORT

 

  1. To keep the public, informed on what the state and other stakeholders are doing on making Transitional Justice happen.
  2. To generate information for strengthening advocacy and lobby on pressuring state and other stakeholders on the responsibility to deliver Transitional Justice.
  3. To develop creative approach for making transitional justice.

 

  1. THE RATIONAL

Consultatively and productively push of the state and other stakeholders to deliver their commitment on the obligation of making Transitional Justice happens in the society of South Sudan is essential. Therefore, regular compiling of information for public consumption that demonstrates how the state and other stakeholders are engaged on making Transitional Justice prevail is the approach for making check and balance, promoting transparency on the state and other stakeholders commitment.

 

  1. KEY FINDING PRINCIPLES
    1. INITIATION OF INSTITUTIONS FOR TRANSITIONAL JUSTICE

Reservations are seriously observed in speeding the establishment of Transitional Justice institutions stipulated in chapter five of the Agreement on the Resolution of Conflict in South Sudan. The reservations were much of t fear of unknown from the political elites. The political elites of the conflicting parties are not supportive of accountability and justice. The Agreement on The Resolution of the Conflict in South Sudan chapter five obligated the Transitional Government of National Unity to establish three institutions namely.

  1. The Commission for Truth, Reconciliation and Healing (CTRH).
  2. The Hybrid Court for South Sudan (HCSS); and
  3. The Compensation and Reparation Authority (CRA).

Slow progress was observed on the establishment of the CTRH and HCSS. The progress observed in relation to CTRH is the facilitation of the community sensitization on chapter five with much focus on CTHR than HCSS and CRA. HCSS and CRA were viewed as more complex risky than CTHR by the authorities. The public sensitization events on Chapter Five of the peace agreement organized by the national ministry of justice have effective participation of the civil society and faith based groups.

CTHR: The Ministry of Justice demonstrated clearly that it wants to see the CTHR establishment moving forwards. Government action on CTHR establishment is somehow observed by CEPO in comparison with actions towards other mechanisms of Transitional Justice.

HCSS: The past developments in 2017 around HCSS were motivating. The Transitional Government of South Sudan is conducting some meetings with African Union (AU) on establishment of the HCSS. But it seems the move is slow due to some feeling or misinterpretation of the HCSS by some individuals in the government and the parties’ signatories to the Revitalized Agreement on the Resolution of Conflict in South Sudan. The developed timeline for the HCSS process which was not made public in 2017 either by the government or AU seems not to have been followed seriously by both institutions (government and AU). HCSS is one of the aspect in the RARCSS that gained consensus among the signatories to RARCSS to be delayed or forgotten because the general interpretation is that HCSS is intended to target the top politicians (Big fish) from the conflicting parties.    

CRA: CRA is one of the forgotten Transitional Justice mechanisms by the government. It was viewed as Hugh financial implication on the government. The appetite for making CRA real is very low among the leaders in the government because it was one of the mechanisms demanded by the communities that are mostly affected by the violent conflict. The interpretation on how CRA will deliver its mandate is one of the sensitive issues that need to be communicated well to the communities. Majority of the communities during the observed transitional justice sensitization events are interested in CRA focusing on individual approach than communal approach in delivering its mandate. Individuals in the communities want to see CRA dividends targeting as individuals not as community. This thinking among the individuals in various communities requires proper, clear and accurate messaging on CRA mandate. Any failure in proper and accurate messaging on CRA mandate may cause some frictions among the communities and tension between communities, and the state institutions are responsible for CRA mandate development 

  1. KEY CONCERNS.

 

  1. Lack of accurate and proper messaging on transitional justice components in South Sudan may lead to misinterpretations, misinformation and hostile propaganda on Transitional Justice
  2. Sensitization on what is meant by transitional justice  for decision and law maker is essential for preparing a way for accurate and proper messaging on transitional justice
  3. Establishment of Transitional Justice mechanism per the Revitalized South Sudan September 2018 peace agreement cannot materialize or hold water till the constitutional amendment Bill is passed by the Transitional National Legislative Assembly. Without incorporation of the signed September 2018 peace agreement into the existing Transitional Constitution, any action towards transitional justice will not be effective and it will be lacking constitutional backup. The process of incorporating the peace agreement into the constitution will be dragged in order to slow the establishment of the Transitional Justice processes, although the peace agreement has chance that can demand the government to speed up establishment transitional justice mechanism
  4. Establishment of CRA may delay a lot because of the government fear of its financial implications including the balancing between the concept of CRA mandate to be delivered by the approach of responding to individual or community’s needs.
  5. Meaningful Traditional Justices may witness delay in South Sudan because of the political fear on some of the components such as HCSS and CRA even elements of CTHR such as truth telling.

 

  1. THE NATIONAL DIALOGUE  COMMUNITIES’ CONSULTATIONS

South Sudan National Dialogue steering committee has conducted number of the state’s consultations on understanding the public position on the agenda of peace and reconciliation. Most of the consultations were conducted between September and October 2017 in some parts of the country. Currently regional consultations have kick-off in Bahr el Ghazal then it will be follow by Equatoria and Upper Nile. CEPO conducted observation in all the states where the national dialogue were conducted including the recent regional consultations in Bahr el Ghazal region. The Public demands for speedy initiation of Transitional Justices was ranked as first priority of the public demand to the national dialogue teams. Majority of the public during the public consultations utilize actions for describing transitional justice as indicators of demanding transitional justice. Among the common actions of transitional justices used by the public during the national dialogue are;

  1. Forgiveness
  2. Acceptance of the truth
  3. Punishing the perpetrators of violence
  4. Compensate the victims of the violence
  5. Apologies and asked for forgiveness    

The citizens want speedy process for conduct of various components of transitional justice. The response of the national dialogue delegates is not effective to the public demand with regards to transitional justice process. The great challenges for the national dialogue is how to identify individuals that facilitate the national dialogue without having tensions or bad reputation with the communities, because some of the national dialogue responsible people during the national consultations heard the communities calling for speedy transitional justice process as the communities were targeting them for their past deeds and want them to be held accountable. Entrusting former political leaders the responsibility to drive the national dialogue consultations has some implications that need to be considered seriously. Among the observed implications that CEPO observed in the national dialogue includes,

  1. Communities are strongly demanding for transitional justice.
  2. Chance of the former politicians driving the national dialogue may water down the demand for speedy initiation of transitional justice is higher. This directly contributes   to lose of trust and confidence on the national dialogue by the communities
  3. The national dialogue has to be extra careful in assessing former political leader’s responsibility to drive community national dialogue consultations.
  4. The National dialogue created clear complementarity between the IGAD-led peace process and citizens approach for peace and stability. Therefore, this require proper strategy for facilitating complementarity between the two processes otherwise chance of one process be viewed as undermining the other is higher. Negative propagandists will take advantage of the dualism about the two process   

KEY CONCERNS WITH SPECIFIC ON TRANSITIONAL JUSTICE

  1. Majority of the citizens demanded that, the National Dialogue should speak to speedy initiation of transitional justice.
  2. National dialogue delegates for engagement with the communities should be pro-transitional justice.
  3. The national dialogue delegates should be made aware of what is transitional justice. This is to help them in providing consultative responses to the communities during the interactions.
  1. INTER-COMMUNAL VIOLENCE

Inter-communal violence is something that is viewed by many political elites as normal trend of societal transformation in post-war independence period. Many political elites were accused by communities as designers of inter-communal violence for personal political gain. CEPO was effectively observing and reporting on inter-communal violence since 2012 after the independence of South Sudan from the rest of Sudan. Records of inter-communal violence in January 2019 was disturbing. January 2019 is one of the dark month for South Sudanese, it is the month that have registered higher dead rate of citizens due to inter-communal violence since independence. January 2019 registered dead total of 528 lives verified by CEPO while some figures were not verified by CEPO. This means the total will be 528 plus. The violence registered incidences of sexual violence. Concerns that are attached on the ongoing inter-communal violence;

  1. Element of crime against humanity is taking place such as intentional group rape of women, killing of elders, persons with disabilities and children
  2. Forced displacement of population from their land of origin
  3. Organization of intentional armed revenge attacks on community population
  4. Growth of hate and hostile propaganda about communities 

 

  1. CEPO OBSERVATIONS

The chance of having the three institutions of transitional justice functioning concurrently is very low because the understanding of the conflicting parties especially on HCSS is erroneous. Clear messages are coming from the conflicting parties’ leaders that HCSS is targeting them as top leaders. While with CRA the fear is centered on its financial implication if it is operationalized same fear is shared on CTHR. Some actions are demonstrated as if CTHR processes are more welcomed. The reality is none of the transitional justice institutions stipulated in ARCSS will come to force until the ARCSS is incorporate into the transitional constitution. The delay for incorporating ARCSS into the Transitional Constitution is direct delay of transitional justice. The leaders of the conflicting parties feared transitional justice because of the call for justice and accountability. They are comfortable with the call for healing and reconciliation without enforcing justice and accountability. From the citizens’ perspectives, healing and reconciliation without enforcing justice and accountability is meaningless because impunity is appreciated and not condemned. Therefore, the chance of impunity been repeated is higher because it is not treated as offences or criminal act. This proof the concept that justice and accountability is done through revenge.  

  1.  SUGGESTIONS FOR WAY FORWARD
  1. Declaration of National Memorial Day and building of memorial centers should be encouraged.
  2. Central and state Governments should take effective role in responding to the inter-communal violence by constituting community mechanism for accountability such as the recent establish court for handing cases of Sexual Gender Violence
  3. Accurate and holistic messaging on transitional justice mechanisms as stipulated in the recent signed Revitalized Agreement on the Resolution of Conflict in South Sudan is paramount 
  4. Speeding facilitation of community-led process such trust and confidence building among communities is essential.
  5. Reconciliation championing campaign should start.
  6. Creating public debates on approaches for making accountability prevail is essential.
  7. AU and the Government should continue the deliberations on the establishment of HCSS. For AU, this is a testing ground for their commitment for ensure perpetrators of human atrocities never go unpunished
  8. Civic space for public deliberations on the transitional justice is required seriously without any form of interference from any authority being it a state or a traditional  authority 

 

  1. CONCLUSION

It is essential to foster community-led transitional justice that can build hope for the citizens that justice and accountability can be fulfilled.  Without clear demonstration of the state leaders on making transitional justice real or happen the chance of return to violence through revenge is great. South Sudan conflicting parties need to use transitional justice as a tool of winning public trust and confidence on political transformation. Any political transformation that appreciates impunity has limited chance in contributing to building peaceful and stable state. Keeping perpetrators of human rights atrocities free in the society is a good call for the victims of human rights atrocities to demand justice and accountability through revenge.

 Revenge is a common practice among the communal conflict in South Sudan for long history. Delaying justice and accountability is a clear legitimizing of revenge as a strategy of preventing impunity. Healing and reconciliation among South Sudan in history is just a short response to prevention of violence but not lasting approach to violence. Communities of South Sudan have undergone numerous healing and reconciliation event and same communities have revenged after short period.  It’s time to use justice and accountability as factor for deterring future return to violence. Among South Sudanese, the easier factors of triggering violent conflict are when revenge is done. While healing and reconciliation was proven as a factor that cannot deter revenge from taking place again. Focusing on initiation of community-led Transitional Justice should the new thinking among actors that believe justice and peace goes hand in hand.