By David De Dau
I. Introduction
The liberation struggle for the self-determination of South Sudan was grounded in the promise of liberty, dignity, equality and democratic governance. Seamlessly transitioning between the days of armed resistance under the banner of the Sudan People’s Liberation Movement (SPLM), through to signing Comprehensive Peace Agreement in 2005 and culminating with declaration of independence on 9 July 2011, their aspiration was readily apparent: freedom from political marginalization, systemic violence and structural injustice.
Salva Kiir Mayardit gave us the Proclamation of Independence, which represented a finalization of several decades worth of sacrifice from people like John Garang de Mabior... But, less than two years after becoming a state, the newly independent Republic collapsed into bloody internal strife in December 2013. What had been presented as a liberation movement turned former comrades into foes.
This article explores, through a legal and constitutional lens, how a liberation elite becomes agents of repression and how failure of governance, accountability and constitutionalism turns the promise of emancipation into a crisis of liberty.
II. The Legal Meaning of Emancipation
Juridically, emancipation is more than a question of political separation or territorial sovereignty.
It involves the institutionalization of:
1. Rule of law
2. Separation of powers
3. Protection of fundamental human rights
4. Accountability of public officials
5. Democratic participation.
The independence of South Sudan, which was validated by 2011 referendum and recognized under international law in accordance with the right of self-determination guaranteed in the Charter of the United Nations, created a sovereign state. But sovereignty is not freedom. A state can exist on paper while its people are essentially unfree.
It’s constitutional order not rhetoric that secures liberty.
III. From Liberation Movement to Extractive State
The SPLM developed as a military-political revolutionary movement. As with many liberation movements that have attained state power, it grappled with the existential problem of moving from armed insurgency to constitutional government.
The transition required:
1. Demilitarization of political authority;
2. Professionalization of the security sector;
3. Institutional checks and balances;
4. Transparent public finance management.
Instead, political power coalesced around executive authority. The lack of potent parliamentary oversight, an independent judiciary and functional accountability mechanisms put a ministry and the security apparatus under a presidency where power was concentrated.
The violence sparked in December 2013 exposed not just a political rivalry, but the fragility of state institutions. The fighting pitted rival factions aligned with Salva Kiir Mayardit and Riek Machar against one another, dividing the country along political and ethnic lines as it led to mass displacement, civilian deaths and widespread human rights abuses.
In such a scenario, those who had previously paraded the banner of liberation found themselves complicit either through action or inaction in the decay of the very liberties they swore to defend.
IV. Constitutional Failure and Erosion of Liberty
Fundamental rights are enshrined in The Transitional Constitution of the Republic of South Sudan (2011), including:
1. The right to life;
2. Freedom of expression;
3. Freedom of assembly;
4. Due process guarantees.
Constitutional text without enforcement mechanisms, however, is aspirational rather than operative.
The systemic weaknesses included:
1. Executive dominance over state institutions;
2. Politicization of security forces;
3. Weak judicial independence;
4. Limited civic space;
5. Culture of impunity.
Where impunity prevails, liberty deteriorates. The lack of accountability for perpetrators of serious violations, whether through domestic courts, hybrid mechanisms or international processes sends a message that power trumps law.
The promise of emancipation is thus hollowed out if citizens are terrified of arbitrary arrest, extrajudicial violence or repression in the face of dissent.
V. The Social Contract Betrayed
All governments are granted authority based on social contract; the implicit agreement that citizens relinquish some of their powers to the state in exchange for protection of their rights and security.
In the South Sudanese context, this social contract was written in blood during liberation struggle. Citizens empowered leaders who had battle for liberation. But when political leaders turn state institutions on segments of their own population, the social contract breaks down.
A government that cannot or will not ensure the security of its citizens against violence loses moral legitimacy, even if it maintains formal sovereignty.
The descent from liberators to oppressors is not inevitable; it is an outcome of institutional collapse, unrestrained power and political opportunism.
VI. Individual Responsibility and Command Accountability
From an international criminal law perspective, leaders may be liable not only for their own direct engagement in crimes but also under doctrines like command responsibility. Liability arises where political and military leaders knew, or ought to have known, that forces under their control were committing violations and failed to take steps to prevent or punish such acts.
The legal principle is straightforward: with power comes responsibility.
The tragedy of South Sudan is not just that conflict happened, it is that those with national stewardship responsibilities became enmeshed in cycles of violence that annihilated civilian populations.
VII. The Way Forward: Reclaiming Liberty
South Sudan needs structural reform to restore liberty:
1. A Permanent Constitution: A permanent, widely-shared constitution developed through an inclusive, participatory process.
2. Judicial Independence: Mechanisms preventing executive intrusion on court affairs. 3. Security Sector Reform: Politicization, professional armed forces are the purview of civilian authority.
4. Transitional justice frameworks have been implemented with accountability mechanisms.
5. Protection of Civic Space: Legal guarantees for media, civil society and opposition participation
Emancipation must be institutional, not personal.
John Garang de Mabior’s legacy was founded on the ideology of a New Sudan based on equality and justice. Whether South Sudan fulfills its own vision for emancipation hinges not on the particular genius of charismatic individuals but on the rule of law. 3
VIII. Conclusion
The men who declared emancipation did not plan to be the architects of repression. But history shows that liberation movements which do not entrench constitutionalism risk becoming what they sought to destroy.
South Sudan’s crisis is not only political; it is constitutional. It is not simply ethnic; it is institutional. And it is not irreversible.
Liberty, once declared, needs to be guarded by law, defended by institutions and demanded by citizens. Without these safeguards, emancipation is a slogan, sovereignty is a veneer and those hailed as liberators risk being remembered as the architects of their own people’s oppression.
The future of South Sudan will ultimately be determined by whether revolutionary legitimacy can be transformed into constitutional governance to redeem the promise for which so many gave their lives.
The writer is a member of the Transitional National Legislative Assembly (TNLA) and may be reached through email: daviddedau@gmail.com or with WhatsApp: +211 926 012 012
