Since March this year, Riek Machar, the first vice-president of South Sudan, and seven others have been under house arrest. They are facing charges of treason, crimes against humanity, murder, conspiracy, terrorism and the destruction of public property and military assets.
The eight accused appeared for the first time at a special court on September 22. The charges stem from an attack on the state military base in Nasir by a white militia group allegedly linked to Machar, which led to the death of one general and 250 soldiers.
The minister of justice and constitutional affairs contends that the charges stem from a state intelligence report that revealed that Machar and the others instigated an attack on the military base.
October 1 marked the fifth day of the trial, which is continuing. However, the arrest of the Sudan People’s Liberation Movement/Army’s leaders in opposition, who are ethnically Nuer, has reignited and intensified ethnic-based violence in Africa’s newest state, which was formed through secession from northern Sudan in 2011 after ad referendum.
This court case has undoubtedly worsened ethnic divisions among South Sudanese both in the country and in the diaspora.
The Dinka, which is the largest ethnic group and to which the president of the Revitalised Transitional Government of National Unity (RTGoNU), Salva Kiir, belongs, believe that the arrest of the eight accused marks a turning point in the quest for adhering to the rule of law, justice and ensuring accountability in the country. However, those who belong to the opposition, largely the Nuer ethnic group of Machar, are of the view that the trial is an abuse of state power to pursue a prosecution that is “politically and tribally motivated” and the case has a potential to collapse the revitalised peace agreement that the warring parties signed in September 2018.
The reality is that both Kiir and Machar were the principal signatories to the agreement, committing to implement it in a manner that would unite the South Sudanese, promote and oversee a people-driven process of conflict resolution, including restoring lasting peace, security and stability in the country through the RTGoNU, which was established in February 2020.
Therefore, it is essential to note that, according to the 2018 renewed peace agreement, the R-GoNU was mandated to operate for three years and guide the country towards pathways to peace and subsequently general elections.
However, due to ethnic-based violent conflicts and contestation for state power by various ethnic groups, elections have been postponed twice, with the new date set for December 2026.
It is unfathomable that the Sudan People’s Liberation Movement (SPLM), which was formed more than 42 years ago as a reaction to the marginalisation of southern Sudan by northern Sudan, has been paralysed by ethnic factionalism to the extent that there are two SPLMs: one in government led by Kiir, and one in opposition led by Machar.
Some people are asking whether the SPLM can be characterised as a liberation movement. The ethnicisation of state institutions, which some opposition members refer to as the Dinkasation of the state institutions, has been the primary driver of prolonged conflict in various parts of the country.
Perhaps one of the South Sudanese, Bona Malual Madut Ring, who comments on the current situation, is correct in stating that “a transitional government often focuses on survival (of ethnic groups and tribes) rather than service delivery.”
The politics of ethnicity in South Sudan remind me of a certain minister, Nanga, in Chinua Achebe’s 1966 novel A Man of the People, who told his friend Odili that he would employ him in a civil service post, saying: “Odili … we shouldn’t leave everything to the highlands tribes, our people (tribe must) have a fair share of the national cake.”
It means 59 years ago, Achebe foresaw the institutionalisation of ethnicity and conflict as a serious problem that postcolonial Africa would grapple with.
Astonishingly, allegations have emerged regarding the minister of justice and constitutional affairs in South Sudan instructing security officials at Freedom Hall to deny entrance to certain media houses on the first day of the court appearance.
This allegation reminds us of how Nanga and his governing party, the People’s Organisation Party, in Achebe’s book, bribed the media house Daily Chronicles, to spread narratives that legitimised their corrupt and political actions.
Suppose these allegations are true about the South Sudanese government. In that case, the question is: what is it that the government is attempting to hide from the public that should be reported by the only media house in its favour?
Let me, without delving deeper into the jurisprudential nitty-gritties of the case, share these synoptic reflections. Initially, the charges were treason, murder and crimes against humanity, but during the proceedings, other charges were added by the prosecution team.
However, the defence team strongly argued that the special court constituted by the minister of justice and constitutional affairs does not have jurisdiction over the matters, citing chapter five of the revitalised agreement that gives provision for an establishment of independent hybrid courts in South Sudan to deal with prosecution of cases related to genocide, crimes against humanity and war crimes.
The chapter clearly stipulates that judges from other African countries would constitute the Hybrid Court for South Sudan (HCSS) to ensure justice and fairness.
The prosecution team counters that since the HCSS has not yet been established, it cannot serve as a point of reference before the special court. However, what is missing from the prosecutors is the reason for the AU, the UN and the government’s failure to ensure the establishment of the HCSS, as enshrined in the 2018 revised agreement.
The agreement states thus: “The RTGoNU commits to fully cooperate and seek the assistance of the African Union, the United Nations and the African Commission on Human and People’s Rights to design, to implement and to facilitate the work of the agreed transitional justice mechanisms provided for in this Agreement… the HCSS shall have primacy over any national court of RSS”.
In light of the current worrying developments in South Sudan, a country that is on the brink of a third civil war, there is a need for the warring parties to reengage and refocus on the outstanding tasks of the RTGoNU, more so, the unification of militias into a single South Sudan defence force, security reform in general, the adoption of the new constitution, and the establishment of the Independent Electoral Commission (IEC) to collect census ahead of the December 2026 general elections.
Parties may agree to extend the HCSS beyond the transition to ensure restorative justice, reconciliation, healing, reparation and accountability for injustices.
This current case can be suspended rather than abandoned for future consideration to avert a looming third civil war.
I suggest that one of the long-term strategies to mitigate political ethnic conflict is for the IEC to include a clause stating that for a political party to be accepted as a contestant in elections, its membership composition must reflect the country’s demographic profile.
Orapeleng Matshediso is a Masters graduate of Pan African Development Studies and Research Fellow at the University of Johannesburg. He is also an alumnus of the then Thabo Mbeki African Leadership Institute.
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