16/09/2025
ON THE NASIR INCIDENT CASE
By Adv. Manyang Rwei Gach
The Nasir incident occurred on 3rd and 7th March, 2025 whereof armed youth infamously known as ‘White Army’ allied to SPLM/A-IO clashed with the SSPDF killing Maj. General, over 250 soldiers and a UN pilot. This incident resulted into house arrest of the SPM/A-IO leader and First Vice President of the RTGoNU, Dr. Riek Machar Teny and others. On 11th September 2025 the Minister of Justice and Constitutional Affairs, Dr. Joseph Geng Akec, made a press briefing outlining indictment against the accused, Dr. Machar and seven others. Subsequently, President Salva Kiir suspended Dr. Machar and other from their positions to allow for the trial.
Procedure v. substantive justice: The erroneous citations of sections or provisions of law by the Minister indeed drew public criticisms. However, the Minister acknowledged the criticisms and revised the indictment. But the erroneously cited sections of the law have given bad impression to the Ministry of Justice and Constitutional Affairs (MoJCA) or prosecution team, ab initio.
It’s noteworthy that procedure is a handmaiden of substantive justice. Section 6(j) of the Code of Criminal Procedure Act (CCPA), 2008 provides that, ‘Substantive justice shall be administered without due regard to technicalities.’ The erroneous technicalities though acknowledged, the MoJCA, also regarded them as merely the de minimis for law knows no cure thereof – thus trashed immaterial. So, the wrong citations of the law will only have adverse effect on prosecution case if maintained in the indictment. Although the accused were held incommunicado, it’s now public – the Nasir Case is before the court of law.
When the other party refuses dialogue, court is the last line of any accused right of defence. The prosecution team should not give the impression that the Nasir Case is merely a fait accompli. This Nasir Case will be a litmus test of independence and competence of the Judiciary of South Sudan. Like any organs of the government in the country, the Judiciary has not been spared of deepening public trust-deficit. But time will tell and no need to preempt whatsoever until the Case reaches its logical conclusion.
Legal battles ahead: The accused will be arraigned in a competent court of law in due course. However, there will be legal battles head, for example, over jurisdiction of a court to try Dr. Machar and others. The public also asks similar question: will it be the High Court, or the Supreme Court, or the Hybrid Court for South Sudan (HCSS), or military court since some accused are militants and will they be tried separately?
To discuss this vertically, one would argue that the Supreme Court shall … have criminal jurisdiction over the Vice President [herein the suspended First Vice President (FVP)]… under Article 126(2)(g) of the TCRSS, 2011 (as amended) and section 10 of the CCPA, 2008; or the Hybrid Court for South Sudan (HCSS) under the Revitalised Agreement on the Resolution of the Conflict in the Republic of South Sudan (R-ARCSS), 2018 which brought the accused, Dr. Machar into the position of FVP of the RTGoNU is also arguably deemed the right Court. Besides, the R-ARCSS provided other mechanisms to handle violations of the Agreement such as R-JMEC, CTSAMVM, et al. This R-ARCSS has been incorporated into the TCRSS, 2011 (as amended), and in the event that the provisions of the TCRSS, 2011 (as amended) conflict with the terms of the R-ARCSS, the terms of this Agreement shall prevail as under Article 8.2 of the R-ARCSS, 2018.
Contextually, the Hybrid Court for South Sudan… [shall have jurisdiction] … to investigate and where necessary prosecute individuals bearing responsibility for violations of international law and or applicable South Sudanese law committed from 15th December, 2013 through the end of the Transitional Period. The HCSS shall have jurisdiction with respect to genocide; crimes against humanity; war crimes; and other serious crimes under international law and relevant laws of the RSS … and individuals indicted or convicted by the HCSS shall not be eligible for participation in the RTGoNU or its successor government(s) for a period determined by law, or if already participating in the RTGoNU, or its successor government(s), they shall lose their position in government. If proven innocent, individuals indicted shall be entitled for compensation as shall be determined by law as under Article 5.3 of the R-ARCSS. If the HCSS were established as envisioned, it would be the right Court to entertain the Nasir Case. Alas, the HCSS is nonexistence!
Thus, from the foregoing, it would be fair to say that if Kiir administration would have declared outright abrogation of the R-ARCSS, then the Supreme Court or the High Court would have legal legs to stand and entertain the Nasir Case. But whichever court the prosecution team submitted the Case to, can alone weigh and decide on the jurisdictional issue or any evidence presented before it.
Adversarial v. ADR system: The prosecution team has already elected the adversarial approach and ignored the latter. This author like the IGAD, AU, UN, the church and others, prefer the alternative dispute resolution (ADR) mechanism which is considered appropriate and also in line with the R-ARCSS. This is not because the author condones impunity but rather believes that ADR holds the best option that won’t cause further hatred or leave bitterness in the hearts of already politically and ethnically divided nation.
Yet, if the Minister of Justice heeds the call for ADR or dialogue approach, he can still enter stay of criminal proceedings or a nolle prosequi under section 25 of the CCPA, 2008. However, the invocation of nolle prosequi may be occasioned by repeatedly preferring defective indictment or that indictment is not sustainable against the defendant(s) or for the sake of national security, public and interests of justice. And before granting stay of criminal proceedings, leave must be obtained. The leave is never given except upon good cause shown as said above and is never refused when the interests of justice so require as evident in Government of South Sudan v. Oyai Deng Ajak and Others (2013) and also in Sudan Government v. Zahra Adam & Another (1962) SLJR.
In a nutshell, no matter the outcome, or unless shelved like the ‘Creation of 28 States Petition’, the Nasir Case will be a jurisprudence in the country. But know this: law should not be used for extraneous purpose or be used as an instrument of political or oppression in a civilized society. The sole purpose of the law, inter alia, which the author cherishes, is the preservation of peace and order.
September 16, 2025
