A/HRC/40/CRP.1 a) Leadership of Transitional Justice In the attainment of transitional justice goals, societies seek to transcend permanently the negative politics that have sustained conflict or misrule. The political contestation usually continues during the transition, and political actors and constituencies make essentially political appraisals and calculations about whether the different transitional justice processes or outcomes would advance or damage their perceived interests or those of political opponents.1505 With respect to South Sudan, the Commission is mindful of the challenge of achieving genuine truth, justice and reconciliation in a period of political and social flux, especially when the same political and military leadership that has contributed to the violations and damage to the country, and many of whom are implicated in human rights violations and abuses, are by virtue of their positions expected to support and drive the transitional justice process. Best practises of transitional justice in the region have demonstrated that the government and national authorities must demonstrate national ownership and political will to create and sustain a conducive environment in which the HCSS, the CTRH and the RCA are able to function effectively and make their necessary contributions. It is therefore imperative that the Revitalized-Transitional Government actively leads the process and protects an environment that will ensure freedom of expression, so that diverse, including dissenting, opinions can be communicated freely. This would be an essential step to open up democratic space and the pursuit of justice, national healing and reconciliation. In particular, victims and witnesses should be encouraged and facilitated to engage with transitional justice mechanisms, and to express their views and concerns without fear, or threat of reprisal. The Commission is concerned at the current lack of political freedoms particularly freedom of speech and expression in South Sudan. Voices which are critical of government are labelled as dissenters and targeted by the National Security Service, and subjected to threats, intimidation and sometimes detention. 1506 Transitional justice processes cannot thrive in an environment of pervasive fear, and the process of recovering from the decades of human rights abuses and impunity must begin with the national authorities ensuring that these important processes take place in an atmosphere conducive to genuine engagement. b) Peace versus Justice? Chapter V of the R-ARCSS prioritises accountability using a range of mechanisms, including the Hybrid Court. This is a significant departure from the Comprehensive Peace Agreement of 2005, which did not include any justice or accountability mechanisms for the serious crimes committed in the years before the signing of the CPA. Nevertheless, the question of whether the pursuit of criminal justice for crimes committed since December 2013 might jeopardise the current peace process has lingered in the background, occasionally finding expression in the pronouncements of officials. Many South Sudanese have expressed their perceptions that the delay in establishing the HCSS is due to the government’s reluctance to create a court which might pursue high profile political leaders. Many civil society representatives view the government’s investment in the National Dialogue process as an attempt to privilege peace ahead of justice. While reconciliation often trumps justice in deeply divided societies, stable peace ultimately hinges on finding a judicious balance between the two objectives. Even where deeply divided countries have made short-term pragmatic concessions that privilege reconciliation and peace at the expense of justice, the purpose has ultimately been to strengthen institutions that diminish the persistence of impunity.1507 1505 Murithi T, The Politics of Transitional Justice in the Great Lakes Region of Africa (Auckland Park: Fanele, 2016) See above “Securitization of the State” section (Section VI(A)) and “Repression and Freedom of Expression and the Press” section (Section IV(A)(5)). 1507 AU Panel of the Wise, Peace, Justice and Reconciliation in Africa: Opportunities and Challenges in the Fight Against Impunity, Report of the AU Panel of the Wise, International Peace Institute, Africa Union Series, February 2013. 1506 188