Beny Gideon Mabor
This article is to offer interpretation on the serious misleading perception on the establishment of the Hybrid Court for South Sudan HCSS, (the hybrid court) which is one of the transitional justice mechanism provided for in the Agreement on the Resolution of Conflict in the Republic of South Sudan referred to herein as the peace agreement. Under chapter five of the peace agreement covers transitional justice, accountability, reconciliation and healing. For couple of months now, streets of Juba city and other Towns and even beyond international boarders are confused by misunderstanding of the provisions relating to establishment of the hybrid court.
The question is whose authority is to establish hybrid court between the Transitional Government of National Unity TGONU and the African Union Commission? This question has always come up on number of occasions especially whenever civic education and dissemination of the peace agreement is carried out by South Sudanese stakeholders to the peace agreement. However, article 1.1 of the peace agreement provides that “ upon inception, the TGONU shall initiate legislation on the establishment of the following transitional justice institutions: 1.1.1 the Commission for Truth, Reconciliation and Healing; 1.1.2 an independent judicial body to be known as the Hybrid Court for South Sudan and 1.1.3 Compensation and Reparation Authority respectively.
In light of these general rules, however, the peace agreement explicitly provide distinction and procedures upon which the two Commissions for Truth, Reconciliation and Healing and that of Compensation and Reparation Authority be established by legislation within six months after formation of the TGONU. For easy references, article 2.1.2 says “the CTRH shall be established by legislation which shall be promulgated not later than six months…including mechanism and methods for enabling CTRH discharge its duties and responsibilities. Article 2.3.2 of the peace agreement further went ahead to define number of commissioners to be seven out of which four shall be South Sudanese including two women and three from other African countries including one woman with the chair and deputy chair from South Sudan and a non-south Sudanese respectively.
For Compensation and Reparation Authority, it is provided amongst others that…the TGONU shall establish within six months a Compensation and Reparation Fund CRF and Compensation and Reparation Authority CRA to administer CRF and in similar term provide criteria for selection of the members of the executive body led by Executive Director whose roles shall be established by law as per article 4.2 (c) of the peace agreement.
On the question of hybrid court, the peace agreement is completely silent in details on the role of TGONU in the establishment of the hybrid court. I can very much remember when the first version for establishment of this hybrid court was introduced to be done by memorandum of understating between the TGONU and the African Union Commission, a fact that can be attested by those who were in the negotiation and we rejected this to the finish. In other words, this mandate exceptionally did not fall within the competence of the TGONU to form it. But the TGONU through transitional National Legislative Assembly for that matter shall domestic the Constitutive Act establishing the hybrid court by the AU into national legislation in order to allow concurrent jurisdiction on trial of such international crimes. As being part of this process, the collective intention of the drafters is that TGONU cannot play any significant role in the establishment of the hybrid court other than normal cooperation during course of the trial
This logic is taken from fundamental principle of natural justice which states that no person can judge a case in which he or she is party or has an interest. The principal parties to the TGONU and associates are the very accused of these violation of human rights and international humanitarian law and therefore cannot be empowered to enact a law or establish court that will penalize them just like other countries did so in the administration of justice.
However, evidence shows that such lack of commitment to legal accountability by the former government and SPLM/A-in Opposition is already manifested in the Mid-December 2013 armed conflict when both parties could not demonstrated the will to conduct credible and independent investigations with a view to prosecuting and holding accountable persons suspected of serious violations of human rights and humanitarian law, though limited attempt to investigate by the government is made but decided to conceal nor implement the reports of human rights abuses until today.
Second, it is worth noting that National Legislative Assembly few months ago made an attempt through its usual mechanical majority of SPLM members to amend the penal code, 2008. It was a good intention to incorporate universal jurisdiction to try international crimes of genocide, war crimes and crimes against humanity, most of which were noted in the report of the African Union Commission of Inquiry on South Sudan and other reports of different agencies of the United Nations and other human rights organizations such as Human Rights Watch and Amnesty International.
For these reasons and to avoid conflict of interest, article 3.1.1 of the peace agreement expressly provide that “ …the court shall be established by the African Union Commission to investigate and prosecute individuals bearing the responsibility for the violation of the international law/ or applicable South Sudanese law committed from 15 December 2013 through the end of transitional period”. Not only establishment of the hybrid court by the AU Commission but the location of the court, funding, enforcement mechanisms, applicable jurisprudence, number and composition of judges and any other related matters shall be decided by the AU as per article 3.1.2 of the peace agreement.
As a matter of fact, the African Union Commission has put together a task force on the Hybrid court lead by the office of Legal Counsel and sooner or later, we shall see the progress. I therefore reiterated the position of many voices including civil society organizations calling upon the African Union Commission to quickly expedite the establishment process of the hybrid court so to kick off its long awaited search for justice and accountability alongside reconciliation and healing process in South Sudan.
In conclusion, it’s crystal clear to draw public attention that the hybrid court shall be established by constitutive act to be issued by the African Union commission just like any other regional tribunal establish by law and in accordance with terms and conditions set forth in chapter five article 3 of the peace agreement and not otherwise.
The author is South Sudanese private lawyer and was a member of the IGAD Plus peace process for South Sudan representing civil society organizations. He can be reached via firstname.lastname@example.org