South Sudan’s political and military elite are frustrating the realisation of justice as the African Union drags its feet in establishing a hybrid court to prosecute those who committed atrocities in the three-year civil war.

Experts in South Sudan affairs say that leading politicians in the government as well as military top brass in government and rebels, are strongly opposed to efforts to establish mechanisms for transitional justice as per the August 2015 peace agreement, because they believe they are being targeted by the international community.

As a result, there have been behind-the-scenes lobbying by top government officials for the Inter-Governmental Authority on Development (Igad) — which is the guarantor of the peace agreement — to look for ways of amending Chapter 5 that deals with “Transitional Justice, Accountability, Reconciliation and Healing,” in a manner that does not promote retribution. 

“Chapter 5 has become the biggest obstacle to transitional justice in particular and the implementation of the peace agreement in general. The question is whether it can be repackaged to become less threatening to the leadership because the country is running out of time to write a new constitution and prepare for elections,” said Samuel Dun, a South Sudanese lawyer.

Mr Dun, who was speaking at a seminar convened in Nairobi to discuss transitional justice and reconciliation in South Sudan, added that justice cannot be achieved in a country where institutions of justice and systems have  broken down and “there is no access to justice in the first place.”

This comes as a new survey by the University for Peace Centre based in The Hague, Netherlands, shows that over 50 per cent of the victims in the South Sudan civil war, said that retributive justice punishment was the most important, compared with just 15 per cent who prefer compensation.

The unease over the issue of transitional justice emerged in June when an opinion piece attributed to President Salva Kiir and his then vice-president Dr Riek Machar was published by the New York Times, where the two argued that South Sudan needs national reconciliation and healing and not the potentially divisive trials.

The opinion piece divided the two leaders with presidential spokesperson Ateny Wek Ateny, saying that it was written from the office of the president with the permission of Dr Machar, while the rebel leader’s spokesperson, James Gatdet Dak, dismissed it as a “fraud.”

Since the civil war broke out in South Sudan in December 2013, over 60,000 have been killed, scores of women and girls raped and close to 16.000 million internally displaced after they houses and properties were looted or destroyed by both government forces and rebels.

Joseph Amanya, the co-ordinator for the Transitional Justice Working Group comprising seven civil society organisations, told The EastAfrican that they have been lobbying the AU commission to start the process of establishing institutions for transitional justice, but the challenge has been lack of resources.

“The biggest problem is that it is the first experience for the AU, and it is a big challenge taking into account the current state of the August 2015 peace agreement. The AU doesn’t know whether the agreement exists or it is alive,” he said.

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But Dr Zacharia Diing Akol of the Sudd Institute said that the people of South Sudan can start with the simple things that work for them other than waiting for mega institutions to get justice.

“We can start by suspending our bitterness and raw anger for revenge and instead initiate reconciliation and forgiveness among communities based on long-held traditional justice systems of justice as we wait for the national programme,” said Dr  Akol.