By Kamis James Lotua
The sovereignty of the people of South Sudan is “vested in the people and shall be exercised by the State through its democratic and representative institutions established by this Constitution and the law” this is according to article two of the Transitional Constitution of the Republic of South Sudan 2011, amended 2015.
The same Constitution further stated in article 1.5 that “South Sudan is founded on justice, equality, respect for human dignity and advancement of human rights and fundamental freedoms.”
The established institutions the Constitution referred to included the three arms of the government, that is the Executive, the Legislature and the Judiciary. These three representative institutions are expected to work harmoniously to meet the aspirations of the people as enshrined in the Constitution.
The Judiciary as one representative institution is tasked with interpretation of the constitution and as the arbitrator of last resort has increasingly comes under too many criticism in recent days because of the manner it handled cases.
The leadership in the person of the Chief Justice CChan Reec Madut has not been spared either. He has been accused by many observers of incompetence. Many citizens have gone on to accused the Judiciary of having becomes a rubber stamp of the Executive given the unfair judgement people get when settling disputes with the government.
I will add my voice to people with this contemporary view given what I witnessed on 13th June 2016 when the high Court judge Armino Lado shamelessly sentenced 16 innocent people to life imprisonment with out exception on the level of individual’s accused involvement in the crime. This judge ( Armino Lado) was a county court judge specifically hand pick by the Chief Justice to tried this case as directed.
Its worth mentioning that senior judges with enough experience and qualifications including the president of High Court in Central Equatoria State were side-lined. It’s hypocrisy at its best!
This case give us a clear evident of how the Judiciary and the judge were acting in the best interest of the government, (the prosecution and the complainant, which was the National Security Service, General Intelligence Bureau). The judge whether, directed, intimidated or influence by the National Security Service, clearly did not dispense the law fairly and impartially.
Judicial officers including the judges normally take oath of office to uphold the law with out fear or favor and to implement the law in a fair, neutral and impartial manner, Unfortunately, this solemn declaration has been ignored by the judicial officers of the Judiciary who are entrusted with lives of million of South Sudanese.
The leadership of the judiciary will need to move and move very fast to restore public confidence otherwise it will remains a shambolic institution acting in the interest of few politically connected individuals.
As the case was under way in the court, it was shameful for the prosecution witnesses starting with the police investigator not to answer questions why the General Intelligence Bureau detained people arbitrarily without court remand for one year? Why the investigation committee deployed excessive powers to search, investigate, arrest and prosecuted people without due process of the law? All this are powers vested in different institutions by the constitution but the National Security Service exploited the political will of H.E. the President and ruthlessly violated all the rights of the accused people with impunity.
While the trial judge was expected to register these violations and act with in the law to restore the rights of the accused people, the judge refused to give bail, refused to transfer the accused to the main prison with the argument that the main prison was full. What happens later after he passed judgement, the same central prison that he said was full is the new home of all the 16 people.
His refusal also to grant access to defense lawyers to see the accused people. His further refusal to give volumes of prosecution documents to the defense lawyers to photocopy and study them and instead he expected the defense lawyers to read these thousand of documents in court. Refusing to admit documentary evidence from the defense lawyers to the court arguing that such documents should have been submitted to the investigation committee during the investigation.
The same investigation committee was now in court as the prosecution team headed by the same chairman Deng Acuil Adija who now transformed himself self as the lead legal counsel and prosecutor! What freedom did these accused people have to voluntarily gather supporting documentary evidence and submit them to the investigation committee? Refusing immediate family members access to visit the accused persons in detention. Stealing ad confiscation of the accused people properties with no connection to the case.
Despite all these, the judge went further to unified the charges and added more charges in the process. His verdict did not specified who among the accused owed what amount of money from the $14 million and SSP 30 million, rather he ruled that all the accused are liable to pay back the money.
The law should have found how much of the whole sum was found in each of the accused account so that it make it easy for recovery. Admitting illegal and unlawful phone recordings as prosecution evidence in contravention of article 22 of the Transitional Constitution of the Republic of South Sudan which stated “ The privacy of all persons shall be inviolable; no person shall be subjected to interference with his or her private life, family, home or correspondence, save in accordance with the law”.
These actions by the judge and the National Security Service contravened article 12 of the Transitional Constitution of the Republic of South Sudan which stated that “every person has the right to liberty and security of person; no person shall be subjected to arrest, detention, deprivation or restriction of his or her liberty except for specified reasons and in accordance with procedures prescribed by law.
Article 14, “All persons are equal before the law and are entitled to the equal protection of the law without discrimination as to race, ethnic origin, colour, sex, language, religious creed, political opinion, birth, locality or social status.”
Article 19 of the same constitution described the fundamental element of fair trial as;
1. An accused person is presumed to be innocent until his or her guilt is proved according to the law.
2. Any person who is arrested shall be informed, at the time of arrest, of the reasons for his or her arrest and shall be promptly informed of any charges against him or her.
3. In all civil and criminal proceedings, every person shall be entitled to a fair and public hearing by a competent court of law in accordance with procedures prescribed by law.
4. A person arrested by the police as part of an investigation, may be held in detention, for a period not exceeding 24 hours and if not released on bond to be produced in court. The court has authority to either remand the accused in prison or to release him or her on bail.
5. No person shall be charged with any act or omission which did not constitute an offence at the time of its commission.
6. Every accused person shall be entitled to be tried in his or her presence in any criminal trial without undue delay; the law shall regulate trial in absentia.
Now be a judge, compared what happened to these people, being detained for over a year by the National Security Service in the most filthy way. Solitary confinement, physical and mental torture inflicted on them day and night, inadequate food, water and medical care, restricted family visitation and so many other inhuman and unspeakable conditions they were held with the provisions of the Constitution as stated above? Are we being governed by constitution or jungle laws?
The appeal was lodged 14 days from the date of judgement on 13/6/2015. But nothing has been forth coming ever since. Very conflicting statements are coming out from the very judges handling the appeal. Mr. William Ewart Gladstone said that “Justice delayed is justice denied”. It’s a known facts that the appeal process is governed by legally lay down procedures like the case file must be study starting with the junior judge to senior judge but this particular appeal is done in reverse and is taking longer than necessary. These delay is raising an eyebrow on how fair the judgement will be and we want to alert the public that it may lead to further manipulation of the appeal process by the National Security Service, General Intelligence Bureau.
The Rev. Martin Luther King Jr reminded us that “ injustice anywhere is a threat to justice everywhere” National Security effort is to conceal the truth that these case was built on from ever coming to the public domain but thanks to organisations like Legal Watch Associates South Sudan that have documented the case and have release their preliminary research. Such actions by the government to direct the Judiciary and the judges constituted a serious miscarriage of justice and call in to question the doctrine of separation of powers. It’s proved that the Judiciary in the Republic of South Sudan is NOT independent!
It’s a serious trend that National Security Service has been abusing civil rights and liberties with impunity by arresting people without trial, falsely accused people without crime committed.
Such unfair and foul play that I described can provokes the society’s sense of peace and harmony because if it happens to these People today, why can’t it happens to anybody else tomorrow? The law must be administered in a lawful way, in as much as the government has the right to fight crimes and keep law and order, it should not abrogate civil liberties of its citizens through witch-hunt on flimsy political ground.
Given the level of interference by senior government officials and the National Security Service, will the Judiciary live to the aspiration of our Republic as ingrained in our national coat of arm “ JUSTICE, LIBERTY and PROSPERITY” and make the people to belief in the rule of law?
I call upon the Appeal Court Panel that is reviewing the case to restore public confidence in the Judiciary and uphold the law without fear or favor.
The writer is a South Sudanese citizen.