Kiir and Machar have called on the international community and peace agreement partners to reconsider how the country will deal with perpetrators of atrocities committed during the civil war which broke out in 2013.
South Sudan needs truth, not trials.
The leaders argued for scrapping the peace agreement’s plans for a hybrid court tribunal to establish the guilt of those who committed atrocities during more than two years of conflict, which killed tens of thousands of people.
Their concerns, which were immediately criticised by activists and human rights groups, were voiced in a comment published under the leaders’ names in the New York Times on June 7. Entitled “South Sudan needs truth, not trials” the two leaders argued that establishing peace should take precedence over seeking to punish. “Building a nation is not an easy task, we know this because it is our life’s work,” the article states.
Kiir’s Spokesman Ateny Wek Ateny confirmed that the editorial was authored by the two leaders and Machar’s Spokesman rejected rumours that the First Vice President and leader of the SPLM-In Opposition had no knowledge about the authoring of the article.
The page-three article called for a process for national healing, truth, peace and reconciliation, similar to that of South Africa or Northern Ireland, as opposed to a hybrid court tribunal aimed at holding people accountable for war-time atrocities.
The two leaders are calling for countries including the United States and the United Kingdom, co-signatories to the peace agreement, to reconsider their “support for a planned international tribunal, the Hybrid Court for South Sudan. We call on them instead to commit to global backing for a mediated peace, truth and reconciliation process.”
But lawyers and activists say the two leaders suggestion would mean condoning impunity, which would likely impede justice, peace and stability.
David Deng, a South Sudanese lawyer and Research Director at the South Sudan Law Society, said the leaders’ call would effectively mean dismantling the August 2015 peace deal.
“The South Sudanese people have seen this game played out and over again, amnesty has been offered to people who caused violence, they have been welcomed back into the system with political and military appointments and that has generated the cycle of violence whereby people are unable to benefit,” Deng said.
“The only way to relieve that cycle is to begin address the cause of violence and the hybrid court for South Sudan will be one important means for doing that.”
Deng said the country has never had a process to hold accountable those who committed serious human rights abuses. He says the idea was mooted during the 2005 Comprehensive Peace Agreement but plans for justice were also scrapped, which has hindered establishing a rule of law in the country.
“I fear that if they [Kiir and Machar] are able to stop the hybrid court then the rest of the peace agreement will go,” Deng said. “If that goes, there’s nothing to stop them from dismantling the peace agreement bit by bit. It is an important time: those who want to see the peace agreement implemented should stand up.”
You are sending a signal that people will start using violence as a way of buying political leadership.
Edmond Yakani, Executive Director of the Community Empowerment for Progress Organization (CEPO), a South Sudanese civil society organisation, agreed. “You are sending a signal that people will start using violence as a way of buying political leadership. So any politician that is discontented with the system will use violence as a way of buying political power.”
Yakani said peace, healing and reconciliation should take place before justice but warned against completely shelving attempts to seek justice, saying it would destroy trust and confidence in the government.
He cited the example of Sudan’s general elections in 2010 when leaders who were unhappy with the outcome took up arms against the government. Because they were later pardoned and not prosecuted it sparked a prevailing view that fighting is the route to clinch power.
Chapter five of the peace agreement called for the establishment of a hybrid court, independent from the national judiciary. According to the document, it is to be supervised by the African Union Commission and will investigate and prosecute individuals responsible for violations of international and South Sudanese laws since the beginning of the conflict in December 2013.
The December 2013 fighting, which grew out of a power struggle between President Kiir and Machar killed tens of thousands and displaced over two million others and also razed entire settlements to the ground.