Of Justice, Accountability, and Reconciliation: Preliminary Stocktaking on Transitional Justice Efforts in South Sudan

Of Justice, Accountability, and Reconciliation: Preliminary Stocktaking on Transitional Justice Efforts in South Sudan

Kathrin Maria Scherr (Max Planck Foundation for International Peace and the Rule of Law, Germany)
DOI: 10.4018/978-1-4666-9675-4.ch009
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Abstract

This paper analyses South Sudan's long struggle for an inclusive reconciliatory process in the country from the Comprehensive Peace Agreement of 2005 to the peace negotiations in Addis Ababa in 2014/15 and highlights the difficulties that the country has faced in introducing a lasting initiative to bring about justice, achieve reconciliation and ensure accountability in the country. The author considers different judicial and non-judicial mechanisms as elements of a comprehensive transitional justice policy and suggests viable options for South Sudan to confront the historical grievances and to resolve the frictions and tensions that have persisted between the different warring groups and ethnic communities during the decades of war in South Sudan.
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A Flawed History Of Justice And Reconciliation In South Sudan

Justice and Reconciliation under the Comprehensive Peace Agreement

South Sudan fought two civil wars against the Government of Sudan (1955-1972 and 1983-2005), which in total claimed an estimated 2.5 million lives and displaced around four million people (Esposito & Crocker, 2004, p. 1). After decades of a devastating war in Sudan between the North and the South, and tedious peace negotiations starting with the Machakos Protocol in 2002, which at the time provided the basis for a ceasefire and peace talks, war officially ended with the signing of the Comprehensive Peace Agreement (CPA) between the Government of Sudan and the Sudan People's Liberation Movement/Army (SPLM/A) in the Nyayo Stadium in Nairobi, Kenya on 9 January 2005. The CPA of 2005 was comprised of six protocols, which were concluded between 2002 and 2005 and in which the warring parties in Sudan committed to embark on a negotiated roadmap for peace.

The CPA sought to create sustainable peace in the country through a number of power-sharing arrangements that triggered the necessary legislative and institutional changes, as well as a new constitutional framework for Sudan, all of which were necessary to secure a balanced compromise between the demands of the North and the South at the time. In line with the arrangements agreed upon in the CPA, a Government of National Unity (GNU) was established in Sudan, while the South set up a largely autonomous government at the same time, the Government of Southern Sudan (GoSS). In addition to the principles on power sharing, the CPA contained extensive wealth-sharing arrangements including provisions to share the country’s oil revenues between the North and South (CPA, Agreement on Wealth Sharing, Chapter III; International Crisis Group, 2007, pp. 2). With reference to the security arrangements under the CPA, the South was able to retain its army while joint security units were created to patrol the border between the North and the South (CPA, Agreement on Security Arrangements, Chapter VI). Most importantly, the Peace Agreement foresaw a six-year interim period that was to be followed by a referendum on self-determination in the South (Articles 2.4-2.6 CPA, The Machakos Protocol, Chapter I). While both the SPLM and the National Congress Party (NCP), the ruling party in the North, had committed themselves in the CPA to promote national unity during the interim period, the South could choose to become an independent nation in a referendum in 2011. Despite the fact that the CPA’s implementation suffered considerable delays, national elections were held in Sudan in 2010, followed by the referendum on self-determination of the South at the beginning of 2011.

From the start of the negotiations the international community was heavily involved in the peace process leading up to the signing of the Comprehensive Peace Agreement. Already in the early talks the Intergovernmental Authority on Development (IGAD) and in particular Kenya, took a lead in the negotiations. The breadth of international involvement in the peace negotiations was mirrored in the number of signed witnesses to the CPA: Kenya, the United States, the United Kingdom, Italy, Norway, the Netherlands, Uganda, Egypt, the IGAD Partners Forum, the Arab League, the United Nations, the European Union, and the African Union (AU). Considering the extensive international attention and heavy involvement in the consultations leading up to the CPA, it is all the more surprising that despite the extensive power- and wealth-sharing arrangements outlined in the final document, the Peace Agreement only contained a brief reference to the need for reconciliation in the country and entirely excluded the question of accountability for the crimes, atrocities and human rights abuses that had been committed in the country during the decades of civil war. Generally speaking, the parties at the negotiating table adopted a rather narrow, forward-looking approach in the consultations by focusing the terms of the final Peace Agreement on a future framework for political transition and wealth sharing rather than contemplating a mechanism within the terms of the final agreement to confront the country’s militant past and to remedy the legacies of violence and injustice that had occurred during the years of civil war in Sudan (Oette, 2011, pp. 25). Of even further interest, during the negotiations the parties openly considered inserting general amnesties in the wording of the final peace agreement. On this point, however, the international advisors present at the negotiation table made their voices heard to not include such provisions in the CPA (Crawford-Browne, Basha & Alexander, 2006, pp. 141).

In the end the final wording of the Comprehensive Peace Agreement gave very limited consideration to examining Sudan’s painful past and merely included a general commitment to a national reconciliation and healing process to be conducted by the then National Government of Unity based in Khartoum during the six-year interim period. The promise to initiate a National Reconciliation and Healing Process (NRHP) was spelled out in Article 1.7 of the CPA’s Power-Sharing Agreement (Chapter II, Part I (Reconciliation)) signed in Naivasha, Kenya on 26 May 2004, wherein both parties agreed

[…] to initiate a comprehensive process of national reconciliation and healing throughout the country as part of the peace building process. Its mechanisms and forms shall be worked out by the Government of National Unity.

Apart from the general clause referring to the need for reconciliation and healing, the CPA did not provide any parameters regarding the implementation of such a policy, nor did it contain a requirement to hold the instigators of past violence culpable or remedy the atrocities and injustices that had been committed by both sides during the decades of war between the North and the South. This approach was replicated in the post-CPA constitutional framework, the Interim National Constitution (INC) and the Interim Constitution of Southern Sudan (ICSS) of 2005, which both only included vague references to a national process of reconciliation and healing. In fact, while Article 21 INC stated that “[t]he State shall initiate a comprehensive process of national reconciliation and healing that shall promote national harmony and peaceful co-existence among all Sudanese”, Article 82 (d) INC merely declared as one of the duties of the Government of National Unity the “implementation of an information campaign throughout the Sudan in all national languages to popularize the Comprehensive Peace Agreement, foster national unity, reconciliation and mutual understanding.” The Interim Constitution of Southern Sudan of 2005 (ICSS) contained similar references in Articles 39 (2), 126 (5)(d) and 173 (6)(g) ICSS. In terms of justice and accountability, there was reluctance on the side of both parties to commit to a thorough investigation and prosecution of serious crimes that had been committed in the course of the decades of conflict – a practice that was perpetuated in the years after the signing of the CPA.

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