By Dong Samuel Luak
April 14, 2014 - President Kiir is well known among his comrades of intelligence and calmness, he never forgets, always forgives, but for him the year 1991 is not forgivable or forgettable. The question is whether he will forgive Pagan and his comrades who are charged with treason? He repeatedly mentioned in his speeches that the only person he recognized and cherished in SPLM/A is comrade Pagan who rescued them once by offering him and his colleagues the Zebra meat (called in Dinka Maguar).
I feel this is high time for President Kiir, Minister of Justice and Legal Advisor of the President to Stay the Criminal Proceeding against the (4) four accused undergoing trial in Juba, under section 25 of the Criminal Procedure Act 2008. Reasons being the national interest, which is peace for the people of South Sudan. This is not the first time that such action was taken by the President on the strength of advice given by his legal advisor.
The precedent is already established in the case of Major General James Young Anyith. Mr. President James Young was in charge of the department of Custom in South Sudan during the year 2009 to 2010, but reporting to Khartoum, on 3rd of June 2009 Dr. Pauline Riek of Southern Sudan Anti Corruption Commission (SSACC) based on complaints ordered the searched of the custom head office in Juba under James Young, the results of the search was that a sum of SDG 3,110,109 was found in cash in the chest contrary to financial regulations which requires that the revenue in cash must be deposited into the bank within 48 hours.
The investigation team found also that the total funds mismanaged or embezzled or so through the office of the President for elections campaign amounted to SDG 12,726,353 (Twelve Millions, seven hundred thousands, three, fifty three South Sudanese Pounds). SSACC recommended the prosecution of Major General James Young, which indirectly means the prosecution of the President as an accomplice given the facts that the money where taken by the President for his elections campaign in 2010, the ministry of justice acted by issuing the warrant of arrest against the accused. But given the gravity of the proceedings, the legal advisor of the President interfere and wrote to the Minster of Justice John Luk on 29/10/2012 requesting the stay of the prosecution against the accused Major General James Young. I quote
Hon, Minister it is imperative to note that since his (Major-General James Young) suspension from the Directorate of Custom on 13th June 2010 to date as per the recommendation of the Chairperson of SSACC John Gatwech Lul to the President, his case has not commenced and as such it amount to infringement of his constitutional rights of fair trial as provided for under Article 19(1) of the Transitional constitution of South Sudan 2011, all alluding to the fact that Justice delayed is justice denied. Unquote.
The former Minister of Justice John Luk in his response to the President’s legal advisor insisted that there is a prima fascia case for the accused to answer. I quote
The case is a corruption case, is it lawful that any proceedings against the accused Major-General James Young are terminated, quashed and acquitted, as I am being asked to do? Has the government abandoned the fight against corruption? And if there were any strong national interest that would justify the application of section 25 of the criminal procedure Act 2008, should the accused be encouraged to defy the due process of law by refusing to submit to investigation? Don’t we have a duty to enforce our laws? I strongly feel that the President was not given correct legal advice in term of the application of section 25 of the Criminal Procedure Act 2008 and Article 19(1) of the Transitional Constitution, as the prosecution authority at all levels of the government under Article 135(2), the least thing I expected was to be called in person so that I understand the reasons behind the President’s directives. I say this because the legal reasons given do not fit well into this case of corruption, which involves very huge amount of public money. Unquote.
It is worth mentioning that on 23rd April 2013 the President usurp the powers of the minister of justice and ordered the stay of the prosecution of the Major General James Young. I quote
Therefore in my capacity as the President of the Republic of South Sudan, I have decided that there shall be no criminal proceedings against Maj. Gen James Young Anyieth. This letter is only intended for you to take note. Unquote.
On the same date 23rd April 2013 the President wrote to the Minister of Interior Alison Manana Magaya. I quote
Hon, Minster I write to you in relation to the above-mentioned subject and to specifically give you strict orders as follow:
(a) To lift the suspension of the Major General James Young Anyieth and to pay him his dues from the date of his suspension which was on June 13th 2010,and
(b) To reinstate him to his original position. Please treat these orders with the utmost urgency and importance.
In conclusion after this painful account of this precedent set by our President, what will prevent him from taking the same bold decision by ordering the stay of criminal proceedings against Pagan and his colleagues in the national interest of South Sudan, instead of this legal trap of Courts and Trails which is embarrassing to our criminal justice system. And humiliating to the comrades who once shared the Zebra meat in the liberation struggle. Peace must be given a chance Mr. President.
The writer is a lawyer in South Sudan, he can be reach on firstname.lastname@example.org