Opinion| Malicious prosecution of Machar and co-accused: A conspiracy to bury political opposition, engineer succession

I consider the prosecution of Dr. Riek Machar Teny and his seven co-accused a deeply troubling test of whether South Sudan’s justice system serves the law or the political interests of the ruling SPLM Party. When criminal proceedings become instruments for eliminating political competitors, the courtroom ceases to be a sanctuary of justice and becomes a theatre of political persecution.

The central question is straightforward: where is the credible evidence that Dr. Machar formed, commanded, financed, or exercised effective control over the White Army in the March 2025 Nasir attack? After subjecting Machar to prolonged confinement and the other accused to detention, the state must establish individual criminal responsibility through admissible evidence, not ethnic association, political rivalry or collective suspicion. Allegations of torture must also be independently investigated; detention alone does not establish torture, just as a criminal charge does not establish guilt.

Five fundamental gaps in the prosecution’s case

First, command responsibility cannot be manufactured from ethnic identity. In his defense testimony reported on 26 October 2026, Machar described the White Army as a decentralised community-based force whose members organise locally, elect their own leaders and operate without formal SPLA-IO registration, military rations or an established chain of command linking them to him. The prosecution must prove the relevant superior-subordinate relationship and the applicable elements of criminal responsibility, not simply point to his Nuer identity.

Second, the prosecution’s own investigative evidence requires scrutiny. Reports of lead investigator General Basilio Thomas Wani’s testimony that investigators lacked material evidence connecting Machar and his co-accused to White Army leader Tor Gile Thoan raise a fundamental question about the evidentiary foundation of the case. If accurately reported, that admission seriously weakens the alleged command link; it does not, by itself, determine every charge.

Third, political association is not proof of conspiracy. The prosecution must establish an agreement and the required criminal intent through reliable evidence. Public speeches, political relationships, and the fact that armed civilians participated in violence cannot substitute for proof that Machar ordered, planned, or knowingly contributed to the alleged crimes.

Fourth, Machar’s reported account of communications intended to de-escalate tensions and arrange the safe reception of transitioning SSPDF soldiers deserves serious examination. If the original documents support that account, they may contradict the allegation that he directed an attack. The court should assess the complete communications, their context and their authenticity rather than accept selective interpretations.

Fifth, the state must distinguish evidence from inference. Questions raised during the proceedings about digital forensics, device seizures and the handling of technical evidence demand transparent judicial scrutiny. Any evidence obtained unlawfully, rendered unreliable or insufficiently authenticated must be assessed under the applicable rules of evidence and fair-trial guarantees.

These gaps do not automatically prove Machar’s innocence or establish malicious prosecution as a completed legal finding. They do, however, make it essential that the prosecution prove every element beyond reasonable doubt and that the court remain independent of political pressure.

The White Army, Gelweng and the politics of selective justice

The White Army did not emerge simply because Dr. Machar entered politics. Community-based armed youth formations have historical roots in local systems of protection, cattle defence, intercommunal conflict and the security vacuum that successive administrations failed to address. Their historical development predates South Sudan’s independence, although the precise origins and evolution of the White Army require careful historical documentation. The proliferation of modern firearms has transformed the capacity of these formations without necessarily converting them into centrally commanded national armies.

The comparison with Gelweng and Titweng formations in Bahr el Ghazal exposes the danger of selective prosecution. These community-based forces, associated particularly with Dinka cattle-keeping communities, have also operated within local security and political environments. If armed youth associated with one community attack government forces, the law must establish the individual responsibility of those who planned, ordered or participated in the crimes. It cannot presume that every governor or political leader sharing their ethnicity commands them.

The same standard must apply to President Salva Kiir Mayardit if credible evidence establishes his criminal responsibility for any alleged unlawful violence involving Gelweng forces against Nuer communities. His office cannot confer immunity from the law, just as Machar’s opposition leadership cannot establish guilt by itself. Equal justice means equal standards of evidence, not equal numbers of political enemies prosecuted.

A political conspiracy and a failed succession strategy?

I cannot ignore the political context. When senior government figures, including former Information Minister Michael Makuei Lueth, have publicly expressed that they do not need Machar in politics, their statements invite legitimate scrutiny of whether the prosecution is entangled with a broader project to exclude him from political life. Such statements do not independently prove a conspiracy, but they make judicial independence and prosecutorial impartiality especially important.

My concern is that the criminal process may have become entangled with a succession strategy intended to weaken the opposition, remove Machar from the political equation, and reshape the country’s leadership without genuine political competition. If that was the objective, the strategy risks failing on its own terms: a political rival cannot legitimately be eliminated through criminal proceedings unless the state proves the charges according to law.

The prosecution against Dr. Riek Machar and seven others can appropriately be referred to as abuse of process, politicisation of justice, selective prosecution and, where the requisite elements are established, malicious prosecution. Article 19 of South Sudan’s Transitional Constitution guarantees fair-trial protections, while Article 14 of the International Covenant on Civil and Political Rights protects equality before courts, the presumption of innocence and fair-trial rights. These safeguards prohibit the state from treating political opposition as a substitute for criminal evidence.

The African Court’s judgment in Ajavon v Benin also illustrates the importance of judicial independence and fair-trial guarantees where politically consequential criminal proceedings are challenged. The precise applicability of any precedent must be assessed against the facts and jurisdiction of the South Sudan proceedings.

Conclusion: Justice must not become a political weapon

My position is unequivocal: prosecute those responsible for the Nasir killings, including crimes against SSPDF soldiers, but establish responsibility through credible evidence and lawful procedures. Investigate every comparable offence, regardless of the perpetrator’s ethnicity, military affiliation, or political office. Do not turn the White Army into a legal shortcut for criminalising the Nuer community, or Gelweng and Titweng into politically protected exceptions.

If the state cannot establish the alleged command relationship, criminal intent and individual responsibility, the prosecution must fail on the charges that remain unproved. If evidence establishes that proceedings were deliberately initiated for an improper political purpose, the appropriate remedies should follow under the law.

South Sudan cannot build national unity by prosecuting one community’s political leadership while excusing comparable conduct among the powerful. A court must determine guilt; a ruling party must not dictate it. The rule of law must survive the political ambitions of those who govern, or justice will become merely another weapon in the power struggle.

The writer is a South Sudanese constitutional lawyer, academic, and political figure. He studied law at Makerere University in Kampala, Uganda. He is an independent legal researcher and constitutional expert and serves as a lecturer and Deputy Dean of the College of Law at Starford International University in Juba. He is also a member of the Sudan People’s Liberation Movement-in-Opposition (SPLM-IO). He can be reached via [email protected]**.

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