An announcement by South Sudan's government that it plans to charge seven leading opposition politicians with treason threatens to derail a fragile peace process just days after a ceasefire was signed in Addis Ababa.
Since mid-December, the government has held 11 opposition figures in detention in Juba pending the results of an investigation into their alleged involvement in a coup to bring down the government.
According to a statement by Minister of Justice Paulino Wanawilla Unago on January 28, the investigation has found evidence that four of these men - Pagan Amum, Oyay Deng Ajak, Majak D'Agotk and Ezekiel Lol Gatkouth - were involved in plotting a coup.
Three government opponents currently not in detention are also expected to face treason charges, said the minister. They are the former vice president Riek Machar, former Unity state governor Taban Deng Gai and former environment minister Alfred Lado Gore.
These people have a case to answer before the court for planning and carrying out the coup.
"These people have a case to answer before the court for planning and carrying out the coup," Wanawilla told reporters in Juba. "Anybody who intends to change a constitutional government or to suspend the constitution or abrogate the constitution by force commits treason." Treason in South Sudan carries the death penalty.
The seven other detainees were charged with planning to "mobilise the public to bring down the democratically elected government", but the investigation concluded that there was insufficient evidence to charge them. They are Peter Adwok Nyaba, Deng Alor Kuol, Kosti Manibe, Cirino Hiteng, Madut Biar Yel, Gier Chuang Aluong, and John Luk Jok.
"Because we did not have enough evidence to prosecute these people, we are going to release them on bail," said Wanawilla. These seven are now in Kenya. One opponent, former adviser to the ministry of the interior Khamis Abdulatif Chuwal Lom, who was not among the detainees, has been found not guilty of all charges.
All 14 accused men deny any involvement in the alleged coup attempt. The families of the 11 detainees have enlisted legal representation from a group of international lawyers, but there remains little clarity over the details of the ministry of justice investigation or the next steps that the government plans to take.
No access to detainees
The lawyers plan to meet with the seven released men in Nairobi, but they have not yet been granted access to the four remaining detainees in Juba. Nor have they been given written confirmation of the charges or been allowed to see the evidence on which the charges are based.
"We are doing everything we can to facilitate access to the detainees," says Gregor Guy-Smith, one of the lawyers representing the four men. "We have not seen a copy of the written charges or the evidence to support those charges. There is no clarity on what the ministry of justice plans to do."
According to legal experts, the government's handling of the detainees contravenes the country's transitional constitution. "There's been a lot of talk about the constitution, but the government is violating it in 20 different ways," says a legal expert specialising in South Sudan who declined to give his name. "No one has seen a single piece of paper saying what the charges are."
|Follow our in-depth coverage of South Sudan
"From what I can tell, South Sudan's constitution and criminal procedures include being advised of the charges and having an opportunity to have the information that forms the basis of the report available," says Guy-Smith. "It should be available to those accused. They should have them in written form so that they can respond."
The government's defiant stance also runs contrary to the spirit of the agreement on detainees signed by the government and opposition elements of the ruling party, the Sudan People's Liberation Movement (SPLM), alongside the ceasefire agreement in Addis Ababa on January 23.
Under the agreement, the parties committed to "the spirit of an all-inclusive dialogue to resolve the issues connected with the current crisis in the country", and agreed to establish an "all-inclusive National Reconciliation Process in which the detainees and other political actors… have a significant role to play".
The problem is that the list of those charged with treason by the government includes just those men that would be involved in such an all-inclusive dialogue. Until July 23, when President Kiir sacked Vice President Machar and suspended Pagan Amum from his post of secretary-general of the SPLM, the two had been South Sudan's lead negotiators in talks with Khartoum on outstanding post-independence issues, while Taban Deng signed the ceasefire and detainee agreements on behalf of the SPLM in opposition.
"The chief negotiator for the SPLM opposition is Pagan Amum, and he has not been able to be present at the negotiations," says Guy-Smith. "This may make it difficult for these negotiations to proceed in a positive fashion."
The government insists that it retains the right to pursue its investigation into those detained. "The recent agreement on the cessation of hostilities was aimed at determining the position of the accused persons, but not to release them," Telar Ring Deng, adviser to South Sudan's President Salva Kiir on legal affairs, told reporters in Khartoum. "Anyone who commits a crime shall be punished by the law."
Negotiations in jeopardy
The government's intransigence may disrupt ongoing negotiations aimed at bringing the conflict in South Sudan to an end. Talks are due to resume in Addis Ababa on February 7, but the issue of the detainees threatens to drag on. "Detaining the negotiators is a vote of no confidence in the negotiations," says the legal expert.
The treatment of the detainees was a key sticking point in the convening of talks on the cessation of hostilities. Initially, Machar insisted that the opposition would not participate in the talks until the detainees were freed, but eventually relented, agreeing instead to deal with their fate in parallel to talks on the ceasefire.
More than five weeks of fighting have claimed the lives of several thousand people, according to independent estimates, while at least 750,000 have been displaced, according to the latest report by the UN Office for the Co-ordination of Humanitarian Affairs, published on January 27.