Beny Gideon Mabor
“A leader is a person with certain qualities of personality and character, which are appropriate to the general situation and supported by a degree of relevant technical knowledge and experience… to guide a group towards further realization of the purpose, while maintaining and building its unity as a team”. John Adair (2006: 16 – 17) History of Treason Trial
May 11, 2014 - The recent call by the national government represented by the Minister of Justice to stay legal proceedings on treason charges against 4 accused persons out of 7 SPLM leaders who were first set free on bail out agreement was a milestone in real search for peace, harmony, national healing and reconciliation. Section 25 (1) of the Code of Criminal Procedure Act, 2008 (CCP Act) grant powers to the Minister of Justice to stay any criminal proceedings against an accused on reasonable grounds. Indeed, the quest for peace and reconciliation is a reasonable ground to warrant such a decision by the State.
On the same note for the benefit of the accused, such prosecution stayed cannot be retrial on the same facts at the same trial court. Section 46 (1) (d) of the CCP Act, 2008 says a criminal case shall lapse, and shall therefore not be subject to prosecution if the Minister of Justice so decided to stay the criminal proceedings. In other words, the 11 SPLM leaders are now free people with dignity and integrity like any person and enjoy constitutional rights and duties required of a very citizen. There is no longer any living case against them. The question of which party that won or lost the case on the street is an invalid argument and this debate should not be encouraged anymore. There is no winning or losing of the case in this matter but the state which is a beneficiary of the case has stopped the prosecution and choose peace and reconciliation.
In summary of this brief legal interpretation, those who benefited stay of criminal proceeding are all 11 SPLM leaders including four previously accused of masterminding the alleged military coup namely Pag’an Amuom, Gen. Oyai Deng Ajak, Dr. Majak Agot and Amb. Ezekiel Lol Gatkouth and the previous 7 SPLM leaders that were released on bail and currently outside the country for peace expeditions. The special court announced that Dr. Riek Machar, Gen Taban Deng Gai and Gen. Alfred Lado Gore are still pending treason charges in absentia. This is due to the fact the latter group are now waging armed conflict with the government.
Despite gesture of goodwill in search for peace and reconciliation, President Salva Kiir in his news conference dated 26 April, 2014 said “the court can still call the coup suspects at any time for trial if he so desires”. In fact, this is quite unfortunate and contradicting statement from the President, but with due respect, I know he was told by his legal circle that stay of prosecution can be revived at any time deemed necessary. If this simple provision of the law with respect to stay of legal proceeding is misunderstood or deliberately denied by presidential legal circle, then I intent to agree with observations of Mr. Daniel van Oudenaren who said that “South Sudan is witnessing a period of intellectual exhaustion, in which many key actors – politicians, commanders, mediators, diplomats and bureaucrats – don not know. I pray the presidential circle of all specializations be very honest and correctly advise the president on critical matters in particular the presidential legal advisor and the Minister of Justice who are the chief legal advisors of the government.
Call for Peace and Reconciliation
The release of the 11 alleged coup suspects truly manifests spirit of forgiveness, love and confidence to return back the country to normality. Speaking to journalists outside court room upon released two weeks ago in Juba, former Secretary General of SPLM Paga’an Amum, said he welcomed the government’s decision, expressing hope peace could be restored in the fractured country”. He went further and committed that “we will now work with all parties and stakeholders to bring peace to this country, including making necessary contacts with the government and those in the opposition to end this senseless war that is killing our people”.
Similarly, this statement is now corresponding with the agreement to resolve the crisis in South Sudan signed between President Salva Kiir and rebel leader Dr. Riek Machar on 9 May, 2014 in Addis Ababa, Ethiopia that ensure inclusion of all South Sudanese people stakeholders in the peace process…including SPLM leaders (former detainees), political parties, civil society and faith based leaders.
In contrast of the inclusive peace process as agreed, the released of the 11 alleged coup suspects received mix reactions of both jubilation and critics so far. The latter voices decry the unfortunate death of more than 10,000 people and displaced million more that is apparently seen to be going without justice and accountability. The general public is seriously demanding to know who is responsible for these mass killings following grand signing of the agreement to resolve the crisis in South Sudan that is said to allow formation of the transnational government with SPLM/A in Opposition amongst other commitment.
Another biggest concern is how are the 11 politicians going to participate in either forum to contribute to peace and stability? Will they accept if the Government appoints them into these forums on behalf of the Government? Are they free to choose either camp? Will they create their own camp and what is the implication of a third block in negotiations? What are real burning issues that must be figure out in both negotiations to bring about peace? The government and opposition must engage this groups very closely as the armed conflict is connected to disagreement within governing SPLM party for political ambitions amongst other cause of the conflict.
The civic and political engagement of all relevant stakeholders to bring about peace and restored the destroyed social fabric must now begin with their immediate involvement in the current two negotiations namely the peace process and the SPLM intra party dialogue. The international community is also gaining hope for would be return of peace and stability to nascent State. In practice, the following need to be taken into serious considerations.
• The Government and the SPLM/A in opposition must stick to implement the agreement on the resolution of crisis in South Sudan signed on 9 May, 2014 particularly stoppage of military operations against one another; opening of humanitarian corridors for delivery of basic services to the affected communities and full participation of all stakeholders in the peace process. However, the international community is worried of how much weight will President Kiir and rebel leader Dr. Riek Machar have over their fighting forces to respect this agreement? Example of this lack of full control over the fighting forces by both parties is the ongoing fighting in Unity State just before the end of one day after signing of the ceasefire agreement in the highest personality of the President and the rebel leader. They two leaders must come out and proved the contrary to call upon the fighting forces and the general public to implement the ceasefire agreement. In fact, the meeting of the two leaders in Addis Ababa will shape the rest of the peace process and will be determining factor whether to continue wasting time without peace or real peace will come.
• The government and SPLM/A in opposition must allow the 11 SPLM leaders to freely decide how do they want to contribute to the peace process including SPLM intra party dialogue. Peace process is a soul searching work and should not be given strict guidelines. Peace is broken because of hating each other. Let all the people of South Sudan listen to what South African former President and Nobel peace prize winner late Nelson Mandela said that “No one is born hating another person because of the colour of his skin, or his background, or his religion. People must learn to hate, and if they can learn to hate, they can be taught to love, for love comes more naturally to the human heart than its opposite." We must take this message by forgiving those who offended us and vice versa and teach ourselves love and unity.
• The third recommendation is what to do with the biggest challenge of peace and stability. Peace is not just ending the violence, but it must strategically spell out problem to solve and how it will be sustained. Chief amongst this strategic proposal is an overhaul of the institutions of the state particularly the security architecture toward demilitarization of the society by restructuring the army to reflect the national defense force with central command and order. These reforms should include a new name to the army, setting the basic requirements for joining the armed forces and other related matters. The same reforms must be extended to civil service to ensure right persons employed in right places with commitment to deliver services with transparency, accountability and sufficient check and balance. If these are not done, the mediators will only create interim stability and violence will erupt not too long.
• The last but not least recommendation is for the international community to exert more efforts to ensure full enforcement mechanism of the cessation of hostilities by urgently deploying IGAD monitoring and verification mechanism as well as African Union protection forces agreed so far but not materialized. Undeniably, the US government helps create South Sudan and therefore has moral obligation to intervene at any cost. The Obama administration must not watch the people of South Sudan butchered by power thirsty individuals. The US government must urgently send special troop to join hand with African Union protection for implementation of the ceasefire agreement.
Beny Gideon Mabor is Executive Director, African Centre for Peace and Humanitarian Dialogue and a member of Civil Society Delegation to the South Sudan peace process in Addis Ababa, Ethiopia. His research interests include governance, human rights and social accountability. He can be reached at firstname.lastname@example.org