Negotiating the release of eleven men held in Juba has consumed a great deal of the time and focus of mediators. Despite the entreaties of diplomats shuttling between Addis, Juba and Jonglei, the detention of the Eleven remains a sticking point between Riek Machar and Salva Kiir. But a successful negotiation to secure their release will not solve the crisis, and it will not return the peace. The danger now is that too much of the mediators’ political capital is expended on a goal that is only a means to further negotiations, rather than an end in itself, and work towards a lasting settlement remains a lesser priority.
There is little question that the government’s continued detention of these men without charge violates the Constitution’s Bill of Rights as well as South Sudan’s international treaty obligations. Article 19 of South Sudan’s transitional constitution states:
(1) An accused person is presumed to be innocent until his or her guilt is proved according to the law.
(2) Any person who is arrested shall be informed, at the time of arrest, of the reasons for his or her arrest and shall be promptly informed of any charges against him or her.
(3) In all civil and criminal proceedings, every person shall be entitled to a fair and public hearing by a competent court of law in accordance with procedures prescribed by law.
(4) A person arrested by the police as part of an investigation, may be held in detention, for a period not exceeding 24 hours and if not released on bond to be produced in court. The court has authority to either remand the accused in prison or to release him or her on bail.
(7) Any accused person has the right to defend himself or herself in person or through a lawyer of his or her own choice or to have legal aid assigned to him or her by the government where he or she cannot afford a lawyer to defend him or her in any serious offence.
To date, those detained have not been informed of the reasons for their detention, although they are already presumed guilty. They have been held in custody for much longer than 24 hours, have not been brought before a court, and have not had the opportunity to retain legal counsel or have counsel assigned.
It is particularly unfortunate, therefore, that a former minister of legal affairs, current information minister Michael Makuei, can claim that to release these people would be a bad precedent for South Sudan, as he has stated at least twice (Al Jazeera, December 25 (Makuei’s interview from the 18 minute mark); Bloomberg, January 6).
The international community, however, has focused on the political importance of the Eleven’s release rather than on legalities, balancing Riek’s demand for their release with the need for an immediate and unconditional cessation of hostilities. On January 10, the UN Security Council released a press statement:
request[ing] the Government of the Republic of South Sudan, in particular President Kiir, to release all political leaders currently detained in order to create an environment conducive to a successful dialogue.
Speaking before the US Senate the day before, Assistant Secretary of State for African Affairs Linda Thomas-Greenfield stated:
The United States also strongly believes that the political prisoners currently being held in Juba must be released. These individuals should join discussions in Addis to enlarge the
chorus of those seeking constructive solutions to resolve this growing catastrophe.
What if a deal is struck and most, if not all, of the detainees are released? Most accounts have suggested that the Eleven are pro-Riek. Given that Riek is for the detainees’ release, and Kiir adamantly opposes it, the conclusion is easy to draw. But being a critic of Salva Kiir (their antipathy towards to the president bolstered, no doubt, by their time in captivity) does not necessarily make one a supporter of or believer in Riek Machar. Riek and the Eleven may have some common cause, but they are far from being in complete agreement. This is clearly demonstrated by what the detainees have themselves said about a ceasefire and their release, as IGAD stated on January 8 (emphasis added), and echoed by the Security Council in the January 10 press statement referenced earlier:
…the detainees expressed their support to the talks on unconditional cessation of hostilities and further stated that their status as detainees should not be an impediment to reaching an agreement on cessation of hostilities.
Riek’s negotiators have conveniently overlooked what the people they are supposedly representing have themselves said, strongly suggesting that discussions about their release are principally a negotiating tactic. Consider the best case: Riek and his team are true to their word and agree to a cessation of hostilities after all, most or some of the Eleven are released. Some of the Eleven join Riek’s negotiating team, some quietly go back to their lives in Juba or move to Nairobi.
But even if all of the Eleven side with Riek in Addis, it will be a temporary alliance. Others, notably Pagan Amum, have presidential ambitions of their own. Enlarging the elite meeting in Addis is akin to the SPLM convening the National Liberation Council instead of holding just a Political Bureau meeting. There are more people and more views present, perhaps, but the many underlying problems remain. Elite negotiations take time, which seems to easily elapse when you are removed from the realities of conflict and suffering on the ground. The question now is at what point do mediators and friends of South Sudan conclude that talks that are not comprehensive – lacking representation from women, from civil society, from the churches, from minority groups – will not solve anything. I am pessimistic that privileging the release of the Eleven on political grounds is the key to a settlement.