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Traditional justice mechanisms of reconciliation can be explored to aid fractured communities

By Ms. Kuyang Harriet Logo Mulukwat

 

When a nation is ravaged and torn by a conflict like South Sudan, reconciliation becomes one of the determinants of future stability. Richard Dowden, the author of ‘Altered States. Ordinary Miracles’ observed that whenever South Sudanese turn against one another and usually along tribal and ethnic lines, their actions against one another supersede that of their real enemy. Dowden made a reference to the Nassir split of 1991, in which brutal and barbaric atrocities were committed by South Sudanese. The Nassir split, a war within a civil war later failed, but caused havoc. In barbarity, the tribal split exceeded anything the Sudan government and the SPLM/A had ever done to each other. In 2013 history repeated itself, when the two dominant tribes turned their anger against each other and this time, with despicable consequences.

The inclusion of transitional justice in the agreement offers opportunities for reconciliation, but one that I think is worth pursuing is customary justice  mechanism which is reconciliatory and not retaliatory. The magnitude of the crimes and violations would demand a holistic approach of accountability, but I am often left wondering if that will work at all. Customary justice and reconciliation will be influenced by several factors such as the feasibility of the plans on the Truth and reconciliation Commission (TRC), Reparations and the Hybrid Court. In light of the weak penal system, government’s commitment to punish impunity and avoid blanket amnesties will have to be supplemented by adopting customary justice.

The magnitude of the atrocities touched nearly all lives of people in this nation and there is a great need for all to participate in both justice and reconciliatory measures. The best way to achieve communal participation is to adopt customary justice, which would permit the entire population to carry out justice and support reconciliation initiatives. A holistic approach to transitional justice, reconciliation and accountability can still be possible through customary justice that is cheap and can still establish truths through confessions and foster individualized criminality and bring closure to the victims. That said, it does not mean that a customary justice system is all perfect and I am not making the inference that it will be a complete solution to the problems of South Sudan.

 Therefore, for an effective customary justice initiative, a reform of the process should include a succinct analysis of the crimes to be heard by the customary courts, as a first step towards establishing the competence and jurisdictions of the courts. Further, establishing the competence of the courts will allow for an assessment of the customary courts in their current state and decide if major crimes can be handled at that level, or if there is need for a legislation to extend their jurisdiction cover major atrocities and not just simple family matters (the jurisdictions stands at the resolution of family matters only).The atrocities have been committed by both armies and there are concerns around the capacity of customary justice mechanisms to prosecute crimes committed by the military. Based on an appropriate assessment, a strategy such as the hybrid court or a military tribunal can be devised to try the high level military perpetrators. Guarantees such as the right of fair trial and safeguards against false accusation must be built into the customary justice system for an effective delivery of justice. One other significant concern is tied around the need for security of both victims and perpetrators and also how the customary justice mechanism will deal with the issue of appeals.

The legacy of conflicts has torn communities apart and appropriate justice mechanisms such as the customary justice system which enjoys public confidence would provide an avenue to reconcile the communities once and for all. One of the political detainees acknowledged that South Sudanese deserve an apology for the wrongs committed against them. His statement is an indication that at least sections of the leadership are cognizant of the massive wrongs committed against people that have already suffered irreparable damage.  A public apology carries a symbolic acknowledgement of the wrongs, but also paves way for reconciliation. If that is approached within the diverse range of justice initiatives within the customary setting, there might be hope for a future and a new beginning. Customary justice is not just about looking at similar experiences in Rwanda after the genocide or the Mat Oput rituals in Uganda during the active Lord Resistance Army (LRA) days, but the realization that the rich customary heritage and justice system of indigenous South Sudanese might provide the much needed reconciliation. The restorative aspect of customary justice is what will heal wounds and restore relationships of a severely fractured society and customary justice will provide perpetrators and victims the opportunity to face one another in a non-adversarial manner.

 

The Writer is a South Sudanese Lawyer and a United Nations Consultant on Democratic Governance and the Rule of Law and teaches on a part time basis at the College of Law of the University of Juba. She can be reached on This email address is being protected from spambots. You need JavaScript enabled to view it.

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