Heal the Past (Part1)

By Christopher Sebit (sebitomini@gmail.com)

Heavily laden with multiples of trauma, rage, hatred and ethnic prejudices, our past is the source of uncompromising and revenge attitudes compelling individuals and communities to get stuck permanently in the cycles of violence. How can we break free from these cycles of violence and move forward in social, economic, political and cultural development as equal, united and prosperous communities capable of building a strong, vibrant, credible and peaceful state that will win the confidence of the international community?

The satisfactory answer to this question determining the survival of our country lies in the full implementation of the Revitalized Agreement on the Resolution of the Conflict in South Sudan(R-ARCSS) provisions on transitional justice. All the three justice institutions: Commission for Truth, Reconciliation and Healing (CTRH), Hybrid Court for South Sudan (HCSS) and Compensation and Reparation Authority (CRA) must be accurately, sincerely, honestly and fully implemented if we are to break free from the cycles of violence and avoid getting stuck in deeper divisions threatening opportunities for unity in our ethnically diverse state.

The functions of the CTRH as provided in section (2.2.) (2.2.2) of ARCSS are: adopt best practices for promoting truth, reconciliation and healing from Africa and elsewhere; establish accurate and impartial historical record of human rights violations, breaches of the rule of law and excessive abuse of power, committed by state and non-state actors; receive applications from alleged victims and identify and determine their right to remedy; identify perpetrators of violations and crimes; recommend guidelines, to be endorsed by the TNA, for determining the type and size of compensation and reparation for victims; record the experiences of victims; investigate the causes of conflicts and their circumstances and make recommendations regarding possible ways of preventing recurrence; develop detailed recommendations for legal and institutional reforms to ensure non-repetition of human rights abuses and violations, breaches of the rule of law and excessive use of power; lead efforts to facilitate local and national reconciliation and healing; where appropriate, supervise proceeding of traditional dispute resolution, reconciliation and healing mechanisms and develop standard operating procedures for the functioning of the traditional justice mechanisms in accordance with the principles of natural justice; and establish a secretariat that shall function as the administrative arm of the Commission and prepare guidelines and procedures for its proper functioning.

Moreover, the CTRH is mandated to produce quarterly progressive reports updating the TGoNU on its progress in meeting its objectives; the CTRH shall inform and involve the people of South Sudan in all of its tasks and activities and be responsible for carrying out public education, awareness-raising and civic engagement activities to inform the public and solicit continuous feedback; and the CTRH is under obligation to render a final, public report at the conclusion of its mandate three months before the end of the transitional period.

Section (2.3.) (2.3.2.) of the ARCSS provides that the CTRH shall be composed of 7 Commissioners, 4 of whom shall be South Sudanese nationals, including 2 women and the remaining 3 Commissioners shall be from African countries, of whom at least 1 shall be a woman. A South Sudanese national, deputized by a non-South Sudanese national, shall chair the CTRH.

The TGoNU Executive shall nominate the 4 Commissioners of South Sudanese nationality and present them to the TNA for endorsement. And in consultation with the Chairperson of the African Union Commission (AUC) and the UN Secretary General, the TGoNU Executive shall nominate the 3 Commissioners from other African countries and present them to the TNA for endorsement.

Commissioners, investigators and staff of the CTRH shall be persons of high moral character, impartiality and integrity who shall be independent in the performance of their duty and shall not accept or seek instruction from any third party [ARCSS: (2.3.) (2.3.1.)]. To execute its mandate, the CTRH shall have the power to subpoena persons, documents and other materials deemed necessary for the purpose of discharging its responsibilities [ARCSS: (2.3.) (2.3.4.)]. And to protect the rights of victims and witnesses, the CTRH shall implement protection measures that shall include, but shall not be limited to the conduct of in camera proceedings and the protection of the identity of a victim or witness [ARCSS: (2.4.) (2.4.1)].

The HCSS shall be established by the AUC to investigate and prosecute individuals bearing the responsibility for violations of international law and/or applicable South Sudanese law, committed from 1 December 2013 through the end of the transitional period [ARCSS: (3.1.) (3.1.1.)].

The HCSS has the jurisdiction over these crimes: genocide, crimes against humanity, war crimes and other serious crimes under international law and relevant laws of the Republic of South Sudan including gender based crimes and sexual violence. The HCSS is independent from the national judiciary. It has primacy over any national courts.

Judges, prosecutors, investigators and defense counsel and the registrar of the HCSS should be persons of high moral character, impartiality and integrity and should demonstrate expertise in criminal law and international law, including international humanitarian and human rights law. They are selected and appointed by the Chairperson of the AUC. Majority of judges and the registrar of HCSS shall be appointed from African states, and South Sudanese and African staff of other nationalities shall assist the prosecutors and defense counsels [ARCSS: (3.3.) (3.3.2.) (3.3.4.) (3.3.6.)].

Measures to protect victims and witnesses in line with the applicable international laws, standards and practices shall be implemented as well as the rights of the accused shall be respected in accordance to applicable laws, standards and practices by the HCSS [ARCSS: (3.4.) (3.4.1.) (3.4.2.)].

A person who planned, instigated, ordered, committed, aided and abetted, conspired or participated in a joint criminal enterprise in the planning, preparation or execution of a crime shall be individually responsible for the crime [ARCSS: (3.5.) (3.5.1.)]. The HCSS may order the forfeiture of the property, proceeds and any assets acquired unlawfully or by criminal conduct, and their return to their rightful owner or to the state of South Sudan [ARCSS: (3.5.) (3.5.2.)].

The HCSS shall award appropriate remedies to victims, including but not limited to reparations and compensation; it shall not be impeded or constrained by any statutes of limitations or the granting of pardons, immunities or amnesties, and that no one shall be exempted from criminal responsibility on account of his/her official capacity as a government official, an elected official or claiming the defense of superior orders [ARCSS: (3.5.) (3.5.3.) (3.5.4.) (3.5.5.)].

The HCSS may use the report of the African Union Commission of Inquiry (COI) on South Sudan and draw other existing documents, reports and materials, including but not limited to those in the possession of African Union, or any other entities or sources, for use as the prosecutor deems necessary for his/her investigations and/or prosecution of those alleged to have committed serious human rights violations or abuses, war crimes, or crimes against humanity [ARCSS: (3.6.) (3.6.1.)].

The TGoNU shall establish a Compensation and Reparation Fund (CRF) and Compensation and Reparation Authority (CRA) to administer the CRF [ARCSS: (4.) (4.1.)]. An Executive body chaired by an Executive Director shall be appointed by TGoNU to run CRA, and this Executive body is to include, but not limited to the parties in TGoNU, representatives of CBOs, women’s bloc, faith-based leaders, business community and traditional leaders [ARCSS: (4.) (4.2.) (a) (b) (i) (ii)]. The law shall establish the criteria for the selection of the members and the Executive Director of CRA [ARCSS: (4.2.) (c)].

In the discharge of its responsibilities, the CRA shall provide material and financial support to citizens whose property was destroyed by the conflict and help them rebuild their livelihoods in accordance with a well-established criteria formulated by the TGoNU; it shall receive applications of victims including natural and legal persons from CTRH and make the necessary compensation and reparation [ARCSS: (4.2.) (d) (f)].

A strong significant connection exists between the two institutions of justice: CTRH and CRA. They are complementary to one another. The CTRH identifies perpetrators of crimes, receives applications from victims, and recommends to TNA, guidelines for determining the type and size of compensation and reparation. Thereafter, victims’ applications will be sent to the CRA for a ward of compensation and reparation.

Perpetrators of war crimes or serious crimes against humanity identified by CTRH will definitely be referred to the HCSS for proper investigation and prosecution—thus establishment of another significant link between the CTRH and the HCSS. Precisely, the HCSS is created mainly to investigate and prosecute those individuals who violated international humanitarian law, international human rights law and applicable South Sudanese law. Records of human rights violations and excessive abuse of power that will be compiled by the CTRH are reliable and useful in the process of investigating and prosecuting perpetrators of heinous crimes by the HCSS.

The foregoing evidence points to the fact that the CTRH and HCSS are not mutually independent from one another. They are interwoven. They complement each other in the discharge of justice. The only salient difference between the CTRH and the HCSS is that the CTRH administers restorative justice, whereas the HCSS administers criminal or retributive justice.

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