24/09/2025
Few Things You Should Know About the Ongoing Court Case Against Dr. Riek Machar Teny, PhD
1. Two Governing Legal Frameworks Exist
The Transitional Constitution of South Sudan (2011, amended 2015 & 2018) provides the supreme law of the land.
The Revitalised Agreement on the Resolution of the Conflict in South Sudan (R-ARCSS, 2018) is a peace agreement that introduced transitional justice, accountability, and power-sharing mechanisms.
2. R-ARCSS Supersedes the TCSS in Case of Conflict
According to Article 8.4 of R-ARCSS, in the event of inconsistencies between the Agreement and the Transitional Constitution, the R-ARCSS prevails.
This means any legal dispute, including the case against the First Vice President (FVP), must align with the peace agreement provisions before applying constitutional processes.
3. Hybrid Court for South Sudan (HCSS)
Article 5.1.1 of R-ARCSS provides for the establishment of a Hybrid Court for South Sudan by the African Union.
This court has jurisdiction over crimes committed during the conflict, including genocide, war crimes, and crimes against humanity.
Any case against senior leaders, including Dr. Riek Machar, must be channeled through this court rather than ordinary domestic courts.
4. Impeachment and Removal of Immunity
As per the Transitional Constitution (Articles 103 & 104), an FVP enjoys immunity while in office.
R-ARCSS reaffirms this but provides a pathway: if the FVP is accused, Parliament must initiate impeachment proceedings to lift immunity before any prosecution.
5. Constituting a Special Court
Only after the Hybrid Court process is operational, and immunity is lifted, can a special or ad hoc tribunal be constituted to try the accused.
Without following this sequence, any domestic trial risks being deemed unconstitutional and in violation of the R-ARCSS.
6. Guarantees of Fair Trial and Justice
Both the TCSS (Article 19) and R-ARCSS (Chapter V, Article 5.3.1) guarantee the right to a fair trial, legal representation, and protection from politically motivated prosecutions.
The ongoing proceedings must meet these standards to be considered legitimate.
7. Political Nature of the Case
Since the FVP is a Principal of the Peace Agreement, any attempt to prosecute outside the framework of R-ARCSS undermines the implementation of the peace deal and risks political instability.
In summary: If the ongoing case is to be resolved legally and legitimately, it must follow the steps laid out in the R-ARCSS: (i) establish the Hybrid Court, (ii) impeach and withdraw immunity, and (iii) constitute a special tribunal. Otherwise, the process risks being unconstitutional and in violation of the peace agreement.
