South Sudan's Machar Still Illegally Detained While Salva Kiir's Crimes Continue

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South Sudan Vice President Riek Machar. Ousted by Salva Kiir, puppet of the Ugandan dictator and unindicted war criminal Gen. Museveni. Photo: Flickr.

[Africa: Op-Ed]

The regionally coordinated policy of isolating the SPLM/A (IO) since the breakdown of the Agreement on the Resolution of the Conflict in the Republic of South Sudan (ARCISS) on July 8, 2016 was syndicated by subjecting its leader, Dr. Riek Machar to indefinite solitary confinement in South Africa.

Initially, the publicity of his ordeal was that he was in Pretoria as a guest of the Republic of South Africa. South African authorities later disputed that without disclosing who actually detained him while on medical visit in that country. To our disbelief and relief, the IGAD Council of Ministers Resolution dated March 26, 2018 has cleared the clouds that Dr. Riek Machar was indeed and is still a political detainee of the Intergovernmental Authority on Development (IGAD), the eight-country African regional body tasked with resolving the South Sudan crisis.

The catchword in the wording of that document is: “relocation”(not “release”) which could be legally interpreted as a transfer to another indefinite detention in another country chosen by his captors against his will. To anyone connecting the dots, it all makes sense as a manifestation of IGAD’s failure to abide by the rule of law and the cardinal ethos that qualify the regional organization to mediate the peace process aiming at resolving the ongoing conflict in South Sudan. Among so many elements of injustice in this case, the following spectral violations stand out:

It goes without first and foremost invoking the basic tenet of the criminal justice that deprivation of human liberty is subject to due process of law. In accordance with that universal standard, even initially lawful detention becomes arbitrary if it is not subject to speedy trial or periodic review. Hence, under the existing international law, the circumstances of Dr. Machar’s indefinite detention in South Africa contravene Article 9 of the International Covenant on Civil and Political Rights. That international humanitarian covenant prohibits inhumane treatments such as: kidnapping, indefinite detention, being “disappeared” with no access to court, family or friends all of which depict Dr. Machar’s ordeal in every jurisdiction under the existing international criminal justice system.

Pursuant to Article 9 (a&c) of the Cessation of Hostility Agreement (CoHA) brokered by none other than the IGAD itself, the implementation of the CoHA as signed on December 21, 2017 commences with unconditional release of all the political detainees. This legally covers Dr. Riek Machar as a political detainee of IGAD, which of course includes Kiir’s regime.

It must also be discerned that the tone of IGAD Council of Ministers Resolution is loaded with discordant prejudice and overt hostility against the person and persona of Dr. Riek Machar in violation of Article 4(1) of CoHA, which abhors belligerent or hostile communication during this time of revitalizing ARCISS. This prejudicial tone comes out even louder in the self-incriminating coercion against Dr. Machar to unilaterally renounce violence. This infers hostile prejudice portraying Dr. Machar as the sole catalyst behind the ongoing violence in South Sudan.

Dr. Riek Machar has not been formally charged with violation of any law under the IGAD jurisdiction. This makes his detention illegal by all standards of modern criminal law. The technical term for that illegal practice is” false arrest”. The mockery of justice in that political kangaroo court of IGAD is best illustrated by the conditions attached to even the relocation of this political detainee from one confinement to another under the same status. One of those conditions reads: “Riek Machar must renounce violence for IGAD to relocate him to another location to be determined by his self appointed judges including his erstwhile political enemy( Kiir’s regime).

Any jurist or student of criminal law can easily discern this case of Dr.Machar versus the IGAD as a malicious political persecution of vanquished by the victors. It is a specter of injustice where the victim of violence is arbitrarily victimized and the violent offender (Kiir) who has been on orgy of pogrom and genocide since December 2013 is elevated to the status of a judge to condemn his political enemy to rotting in IGAD political jails.

Volumes of records surrounding the on going crisis in South Sudan have exonerated Dr. Machar as a victim of political violence since December 2013. In pursuit of peace and dialogue with Salva Kiir, Dr. Machar has escaped death twice from Salva Kiir who pursued him up to Gadiang in December 2013 and again up to the Grampa Park in the Democratic Republic of Congo in July 2016. Under the sun, nothing can demonstrate Kiir’s violence than those hot pursuits involving drones and warplanes.

Yet, nobody is asking Salva Kiir to renounce violence. The records must also be informed that it was Dr. Machar who signed the ARCISS first without any reservation and risked his own life to return to Juba under pressure and assurance by the leadership of IGAD-PLUS as guarantors that they would do every thing in their power to ensure that ARCISS is implemented to that letter and spirit. No body needs to be reminded here that IGAD failed to do its part leading to the collapse of ARCISS. In betrayal of Dr. Machar and the people of South Sudan, IGAD did not only condone violation of the agreement it brokered but also recognized that junta of Kiir and Taban as TGONU in violation of Article 6 (4) of ARCISS.

Despite all the betrayals by the IGAD and the international community, Dr. Machar maintained his pursuit for peaceful settlement of the ongoing conflict even in his South African jail house and has written several letters to all the well placed regional and world leaders to intervene in the South Sudanese crisis by resuscitating the ARCIS. He continued with his relentless search for peace amidst military offensive by Kiir’s regime until the commencement of HRF that he supported and sent high-level delegation under the leadership of his Deputy, Honorable Hennery Odwar in December 2017.

Dr. Machar was again the first to embark on full implementation of COHA by instructing his forces to release all POWS and stranded civilians under their custody. This has been done and witnessed by the international organizations concerned including the UNOCHA, International Red Cross and the International Rescue Committee. So far, Kiir has failed to reciprocate. The fascist dictator has done the gross opposite by executing the POWs and sentencing detainees and abductees to death in violation of Article 6( a&c) of CoHA and the Geneva Convention.

To date, the fascist regime has continuously attacked the opposition held areas obstructing the delivery of the humanitarian relief and causing untold suffering to innocent civilians again in violation of Article 8(1&4) of the CoHA. It was also sensational that the IGAD Council of Ministers expressed “extreme concern on the report submitted by CTSAMM reporting flagrant violations of the CoHA by Kiir’s regime during the 61st Extraordinary Meeting of the IGAD Council of Ministers without asking Salva Kiir to renounce violence.

During the Phase II of the HLRF peace talks, the SPLM/A (IO) signed the Declaration of Principles (DoP) which Salva Kiir’s regime adamantly declined to sign in protest of article 28, which provides for punitive action against the violator and spoilers. This can be easily understood as the regime’s audacity to pursue violence and obstruction of the peace process. Again Salva Kiir was not asked to renounce violence and negotiate in good faith. Instead of doing the needful, the IGAD mediating team succumbed to Kiir’s intransigence and made the signing of that road map document optional.

As broadly evidenced by its continued cooperation and collaboration with Kiir’s regime, the IGAD has legitimized Kiir’s violence by condoning all the war crimes, genocide and crimes against humanity committed by Kiir’s regime since December 2013. This is policy is pursued in deliberate denial of the crude reality on the ground that the people of South Sudan are currently protected from the genocidal violence of Salva Kiir’s regime by the United Nations within their own states capitals and the national capital, Juba where they are confined to POCs of UNIMISS. Furthermore, there is no stronger evidence of Kiir’s violence than the testimonies of the refugees and IDPs that have confirmed the ugly truth that Kiir’s violence is responsible for refugee and humanitarian crisis in South Sudan. In any case, it is desolate that the IGAD member states hosting the victims of Kiir’s violence as refugees have miserably failed to ask this violent warlord to renounce violence.

The delicate point this region and the international community keep missing is the cold and bitter truth that the ongoing civil war in South Sudan is a popular armed uprising against the oppressive and genocidal policies of Kiir’s ethnocentric regime. So, reducing it to the person of Dr. Riek Machar is a public insult to the collective intelligence and the dignity of the people of South Sudan who are humanly obliged to resist Kiir’s oppression with Dr. Machar in the fences or outside the fences of IGAD jails.

If any thing, it is Dr. Machar’s physical participation in the peace process that could bring the light closer to the end of this long dark tunnel of political violence in South Sudan. That is why the region and the world must subscribe to Dr. Machar’s wisdom that the only sure and practical way to permanently end the ongoing violence is signing and implementing agreements such as COH that the SPLM (IO) has so far implemented. Any thing else will only prolong the suffering of the people of South Sudan.

Given the mountain of factual evidences presented afore, it is hereby submitted that the judgment in that political kangaroo court of IGAD is fraught with gross violation of international humanitarian and human right law, violation of CoHA, double standards and conflict of interest legally and morally disqualifying the regional organization from its current status as a mediator in the peace process to resolve the ongoing conflict in South Sudan.

In the light of this overwhelming credibility crisis, the IGAD must expressly take the following actions to save whatever little credibility it might still have to continue with mediating the peace process in South Sudan: Unconditional release of Dr. Riek Machar to freely participate in the peace process, putting Salva Kiir where he belongs as a warring party (not a judge or mediator), holding him responsible for violation of CoHA and obstruction of the peace process since the year 2014 and ask him to renounce violence. With this submission,

I rest my case and look forward to hearing from the IGAD kangaroo court and the verdict in the court of public opinion.

The author is the head of the SPLM (IO) Legal Team to the High Revitalization Forum in Addis-Ababa. He can be reached by electronic mail via: kuolpar@yahoo.com

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