This blog argues that the lack of express recognition of Arabic under Article 6 and potential prohibition of its use in courts on the basis of the above provision is inconsistent with Article 26 ICCPR taking into account the provisions of TCSS, the Code of Civil Procedure Act 2007 (CCPA) and the ICCPR. It further examines Article 6 of the Interim Constitution of Southern Sudan (ICSS) 2005 (repealed by the TCSS).

Background

In 2005 immediately after the signing of the Comprehensive peace agreement, the government of Southern Sudan adopted the ICSS as the supreme law. Article 6 of ICSS recognised all indigenous languages, Arabic and English (as official working languages) and sign language. The ICSS further highlighted that ‘there shall be no discrimination against the use of either English or Arabic’. In 2007, the government of Southern Sudan adopted the CCPA 2007 which recognises English and Arabic as official working languages in South Sudan (section 66). The ICSS has since been repealed by the TCSS but the CCPA remains in force through a continuity clause in Article 198 TCSS.

In 2011, South Sudan officially seceded from Sudan and became an independent state. In the same year, the government of South Sudan adopted the TCSS, Article 3 of which references the TCSS as the supreme law in South Sudan. Interestingly, Article 9 of the TCSS provides that ‘All rights and freedoms enshrined in international human rights treaties … ratified or acceded to by the Republic of South Sudan shall be an integral part of this Bill’.

Incompatibility

Section 66 CCPA recognises the lived (and continuing) challenges that the current non-recognition of Arabic under Article 6 TCSS presents. For example, the International Commission of Jurists’ country profile (2014 report) states that: ‘…Arabic continues to be used in courts and that the switch to English-only has posed significant practical problems, for many judges, prosecutors and legal practitioners who were trained in Khartoum…’.

Article 6 TCSS makes no reference to Arabic. In other words, Arabic does not even have the same status as indigenous (national) languages or English despite its widespread use. This makes Article 6 inconsistent with Article 26 ICCPR read with Article 9 TCSS.

In Diergaardt & others v. Namibia (2000), the newly independent government of Namibia made English its official language despite the fact that only 0.8% of its population spoke English, relegating Afrikaans as a national language. The government of Namibia also issued a circular proscribing the use of Afrikaans. On the merits of the case, the United Nations Human Rights Committee (UN-HRC) found that the government’s circular, ‘intentionally targeted against the possibility to use Afrikaans when dealing with public authorities’ violates Article 26 ICCPR (para 10.10). Consequently, the UN-HRC suggested permitting government officials ‘to respond in other languages other than the official one in a non-discriminatory manner’ (para.12).

Similar to Namibia, post-independence South Sudan relegated Arabic in the TCSS. It is on this basis that many are calling for a new circular to prohibit the use of Arabic in courts in South Sudan. Such a decision would contravene Article 26 ICCPR as reasoned by the UN-HRC, which provides an ‘interpretative guidance’ for domestic courts.

Conclusion

Article 26 ICCPR is an integral part of the TCSS within the meaning of Article 9 of the TCSS. In this light, South Sudan is obliged to comply with its treaties obligations by ensuring that those trained in Arabic language continue to use Arabic without being discriminated against.

The people of South Sudan had participated in civil wars with enormous consequences before independence from Sudan in 2011. Many hoped that the people of South Sudan would never experience violence again. Unfortunately, two years later, conflict erupted; this time between SSPDF and SPLM/A-IO.

The basis for these conflicts is tied to ‘ethnic factors and leadership personalities’. Given these conflicts, attempts have been made through peace agreements to bring and maintain peace in South Sudan.

The first peace agreement after the 2013 conflict was reached in 2015 but did not take long to ‘collapse’. However, this conundrum was addressed in 2018 with the signing of the R-ARCSS between the government of South Sudan (GOSS) and the SPLM/A-IO and other parties.

Connecting the White Army to the SPLM/A-IO

The GoSS has detained Dr Riek Machar and other members of the SPLM/A-IO. Their detention is connected to the possible role played by SPLM/A-IO members to the events that led to the death of SSPDF in Nasir and Ulang. The arrest could be in line with the agreement because article 2.1.10.10 requires parties to ‘ensure accountability for the breaches’ of its provisions. It further mandates parties under article 2.1.10.8 to ‘respect and ensure full compliance with international humanitarian law’.

While their detention may be in line with the agreement, holding them incommunicado is in contravention. In this respect, the way forward is to press charges and produce them before a competent court of law for either directly coordinating the Nasir and Ulang attacks or failing to hold the perpetrators accountable. The latter would be relevant if it is established that the White Army is still under the command of the SPLM/A-IO.

In the event that they are taken to court and are found guilty, it is presented that the government should request the SPLM/A-IO members that would replace them. However, if they are acquitted, they should be released and returned to their positions.

Disconnecting the White Army from the SPLM/A-IO

A ruling that vacates charges against the arrested SPLM/A-IO members would mean that the White Army is a non-state actor with no links to any party. In this light, the leaders that have been arrested should be released and engaged by the government on how to devise strategies to arrest the situation in Nasir and Ulang. Subsequently, they must collectively hold the White Army responsible for its actions in Nasir and Ulang. Notably, the A-ARCSS provides for the establishment of the Hybrid Court by the African Union with ‘majority of judges’ drawn from other African countries. The Court’s mandate is to entertain cases concerning genocide, crimes against humanity, war crimes and ‘other crimes under international’ and South Sudan laws ‘committed from 15^th December 2013 through the end of the Transitional Period’. This article suggests that this A-ARCSS accountability mechanism be established and employed.

Along the same line, the government must ensure that its forces fully comply with international humanitarian law: rules of engagement must be complied with and those that have breached these rules, for example, by having indiscriminately killed children, must be investigated and sanctioned for their actions. This approach means that the GoSS and the SPLM/A-IO continue to work together in ensuring the full implementation of the R-ARCSS.

Conclusion

The R-ARCSS rubber stamps the legitimacy of the government of national unity and further provides basis for holding those that have breached the provisions of the agreement accountable. Nevertheless, it does not support the incommunicado detention of the individuals alleged to have committed these violations.