Judiciary not functioning as mandated: UN expert

By Benjamin Takpiny

The visiting members of the UN Commission on Human Rights in South Sudan said that South Sudan’s judiciary is not functioning as mandated under the 2011 transitional constitution.

“South Sudan’s judiciary is not functioning. It is severely under-resourced, lacks the means to be impartial and independent, and in most parts of the country it has no effective presence. Yesterday we visited Jonglei, South Sudan’s largest state, where no high court judge is in place, making the prosecution of rape and murder virtually impossible in ordinary courts, “Carlos Castresana Fernández a member of the Commission said during press conference in Juba on Friday.

 He noted that the persistence of widespread sexual and gender-based violence, including the abductions, cannot be separated from the fact that rule of law institutions are not in place to address these crimes.

 Castresana said that what they have learnt from the global fight against impunity is that the reoccurrence of gross human rights violations cannot be stopped without having meaningful and effective justice. 

He said that the government has resources available to fund the development of the judiciary, adding that courts receive only a tiny fraction of the national budget.

“While State revenues are diverted by elites, to address the persistent human rights violations, justice institutions must be properly funded,” Castresana said. 

He emphasized the importance of implementing transitional justice processes under chapter 5 of the 2018 revitalized peace agreement, saying that it is an essential part of the nation’s healing.

“If the country does not have the opportunity to reckon with its past, the cycle of violence is likely to reoccur. Truth, reconciliation, reparations and accountability are indivisible dimensions of transitional justice, and cannot be separated in the interests of elites or political expediency,” Castresana said.

He also noted that there is need for an independent referee (judiciary) to address disputes that may arise from electoral disputes during the upcoming general election, adding that failure to do this may result into political violence.

The Commission is expected to address these issues of justice in it’s forthcoming reporting and will also provide recommendations to address the impunity that drives conflict.

“These include clarifying the referee for electoral disputes; properly resourcing the judiciary in the budget; establishing all three transitional justice institutions; and, as an immediately available measure, dismissing and prosecuting senior government and military officials, who have been identified in the Commission’s reporting as bearing responsibility for serious crimes,” Castresana said.

He said that without rule of law, there is rule of criminality, adding that South Sudanese have told them this week that they want better from their leaders and a better future for their children and country.

“It is quite apparent that the ongoing subnational conflict and gross human rights can be traced to the root drivers of conflict, particularly the competition for political positions and for territorial and economic gains. The 2018 revitalized peace agreement was designed to address these. Its provisions cannot just be put aside or become part of a box-ticking exercise, for that is highly likely to create entrenched grievances and create new ones, resulting in further violations,” Castresana said.