Release of 7 political detainees and its implications of
constitutional rights in S. Sudan
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By Mabor Maker Dhelbeny
March 24, 2014 - In reference to the violated cessation of
hostilities' agreement which includes the status of political
detainees signed on January 23rd 2014 between the government and rebel
forces loyal to Dr. Riek; and despite the mounting pressure from
international community, foreign diplomats and civil rights activists,
South Sudan's government made a decision abided by the said accord and
thus released only seven former SPLM leaders detained after the
December failed coup attempt of last year.
Implicitly, some people usually misconstrued the term 'arrest' and
'detention'. In this scenario the difference should be made briefly
between arrest and detention. 'An arrest' means a person is deprived
of his or her liberty by authority into the custody of law whilst 'a
detention' means that the offender or accused person is held in secure
confinement prior to trial or a person is put into prison for a short
period of time not exceeding 24 hours, especially for political
reason. In such a situation of depriving a person of his or her
liberty, the police have the responsibility to use only the reasonable
physical force necessary to make an arrest. Of course the necessary
force was used by the police during the arrest of eleven politicians
on December 17th 2013 although some people exaggerated it to have been
extortion.
BAIL, WHO'S JURISDICTION TO GRANT OR TO DENY IT
Since bail is one of the fundamental rights of an accused person, it
should therefore be granted or denied in the exercise of judicial
discretion. In other words, the power to grant or deny bail is
therefore a discretion exercised by judicial officers whose task is to
apply the law in a given case under certain prevailing circumstances.
Bail, according to section 5(1) of the Code of Criminal Procedure Act
No.5 of 2008 - means that "the money or sureties provided by the
accused to guarantee that he or she shall appear in court at a later
date or on call". In simple words, bail may mean a sum of money in
which an arrested person or someone else puts forward as a guarantee
that the arrested person will attend his or her trial in a court of
law at later date, but if the arrested person does not attend it, the
money will be lost. In short a person granted bail undertakes to pay a
specified sum of the amount to court if he or she fails to appear on
the date set by the court (Oxford English Dictionary).
On 29 January, 2014 the Kenyan government has executed the bail, to
bring the former seven political detainees under her custody without
sureties based on the terms and conditions Juba and Nairobi have
agreed thereto. I think one of these terms is that the detainees
should stay in Kenyan territory, though they have been allowed to
participate in Addis Ababa peace talks. This terms of agreement has
been in conformity with section 124 (1) of the Code of Criminal
Procedure Act No.5 of 2008 - that "a case of release on bail of an
arrested person shall be allowed by another person executing a bail,
to bring the arrested person with or without securities". Nevertheless
the step taken by the executive or the police to grant bail is
unprecedented as it falls short of legal procedures and even the terms
and conditions used thereof are deemed to have undermined the court's
jurisdiction under chapter X of the said Act.
Perhaps the former seven political detainees have an offence
punishable with the fine only if at all according to the Investigator
and that's why the executive decided to release them on bail (s.125 of
the same Act). Notwithstanding that section 25 of Code of Criminal
Procedure Act No.5 of 2008, vigorously empowered "the Justice Minister
to stay the criminal proceedings against any accused on reasonable
grounds after completion of an investigation at any stage of inquiry
but before trial. The Minister may inform the Magistrate in cognizance
of offence or court conducting such trial that he intends to stay
proceedings." The fact that the eleven detainees were divided into
three groups in which Group ''B'' of seven politicians happen to be
freed and en-route to Kenya have caused a lot of resentments to the
public.
Since the trial has commenced on Tuesday, March 11, 2014 therefore the
question that poses itself is that whether there are reasonable
assurances that the arrested politicians (ex-seven SPLM political
detainees) will appear before the court as required or not. Whether
the seven ex-detainees released on bail under the custodian of Kenyan
government would take heed on call or ignore it to come back and
answer their charges in the court. In regard to who has jurisdiction
to grant or to deny bail, either the executive or judiciary is a
question of fact. The power of Executive, particularly the police to
release the accused person on bail without charges prior to trial had
been in its existence for a number of decades.
Recently, the December 15th incident had demonstrated that the South
Sudan police forces might have exploited their physical force
unnecessarily towards the arrest of accused coup plotters. This has
been entrenched by Dr. Peter Adwok Nyaba (SSN, 9 Jan, 2014) as such,
"the arrest of the so-called coup plotters whose number rose to eleven
began on morning of Tuesday December 17th the Minister of Interior and
Wild life Force, General Aleu Ayieny Aleu at the head of a tank
brigade went to arrest Hon. Gier Chuang Aluong in his house. There,
the force fired randomly in the house killing a police captain, nephew
of Gier Chuang; his wife Adau had to escape through the back window
and managed to get to the house of Rebecca Nyandeng Garang."
The extensive powers of police however to arrest, to investigate the
crime, to grant bail and to imposed the restrictions on the liberty of
a person should constitutionally be reserved to the judiciary not the
executive. This may in essence, reduce the infringement of
individuals' rights embodied in the Transitional Constitution, 2011.
Such extensive powers to the police in order to impose bail conditions
entail that the police will develop more capacity to put controls on
people not charged with a criminal offence for an extended period of
time.
Avoiding this constitutional rights implication and breach of
individual's right to liberty, a necessary mechanism must be adopted
if not employed for the enhancement of liberty. This should be in line
with section 8(1) of the Police Service Act No. 4 of 2009 which says:
- "in order to discharge the duties provided for herein, police
personnel shall have the following powers, subject to the provisions
of the Code of Criminal Procedure Act, 2008 and any other law in
force: (c) carry out criminal investigations under the directives of
Public Prosecution Attorney; (g) grant bonds and bails". Hence, to
reduce the tension created by the constitution that allowed some
executive members like police to have such powers.
In fact, the legal position that the accused person is entitled right
to apply for bail but whether this constitutional right is respected
by the court remains unquestionable. It's well articulated in the
Transitional Constitution, 2011 article 19 (4) that, "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."
With the regards to the constitutional right to bail, the bail for
capital offences like treason in the above case of eleven should be
denied until after six months on remand had the right procedural
aspects been followed by the executive. This is what has been
established by section 127(1) of the Code of Criminal Procedure Act
No.5 of 2008, which says, "A person accused of an offence punishable
with the death shall not be released on bail". Since granting or
denying of bail is authorized by the court (judiciary), therefore the
granted bail without charges on seven political detainees by the
executive has constrained our legal system. It has been pointed out in
the case of Dr. Kizza Besigy vs. Uganda, Const. Ref. No. 20 of (2005)
by the Constitutional Court: - "that the grant of bail is a discretion
which the court exercises in accordance with the law".
For court to grant the bail, an accused person must prove that certain
exceptional circumstances exist which either justify his or her
release on bail. For instance, severe illness certified by a medical
officer of the prison or other relevant institutions that the accused
cannot receive enough treatment whilst in custody or detention. But in
case of an offence tried by both of the Lower Court and High Court for
two months before trial, still court is obliged to release the accused
person on conditions that it may think fit.
Does it mean that court may be the only institution or authority
entrusted or vested with power to grant or deny bail through the
exercise of judicial discretion, then how did the South Sudan
government arrived at her decision to release the seven political
detainees on bail, just after the investigations without charges? The
answers to this question are already mentioned but I'll leave the rest
of them to my dear esteemed readers.
Bail is however considered by the authority administering it under
certain circumstances, either to be granted or denied based on the
nature of charges against the accused person or if an accused person
has previous criminal records in which he or she had been convicted
several times before, he or she may be denied bail. Such certain
circumstances to be considered by the Public Prosecution Attorney,
Magistrate or Court in granting or denying bail include: the
protection of the public, the seriousness of the offence charged as
mentioned above, the past criminal records of the accused and the
probability of his or her appearance at an inquiry date for trial of
the case according to section 128 of the said Act No.5 of 2008. Indeed
the executive (police) and judiciary (court) hitherto had been at an
unfair demerit in power for competing to grant or release the arrested
persons on bail, but especially in the case of eleven SPLM political
detainees there's controversy in the legal regime.
RECOMMENDATIONS AND CONCLUSION
Therefore, the legal framework to be employed in order to achieve some
objectives of South Sudan's criminal justice systems and in case if
the need may arise; the following suggestions are:
* The legislator must be advised to review the powers of police in
regards to grant of bail, because if suspects are remanded in custody
for six months before trial; hence this will create the environment
for extortions from the accused persons by security agent in the sense
that the accused persons will pay some of the mount in return to avoid
incarceration.
* Judicial officers should not delay in the exercise of granting or
denying bail, particularly in criminal cases so that the concurrence
of powers between the court and police is avoided. This will ensure
that the right of the accused person to fair, free and speedy trial is
maintained. It may also act as a tool to decongest prisons, police
cells and jails.
* Since an accused person is presumed innocent until proven guilty
beyond reasonable doubt, he or she should be granted bail or be given
an opportunity to prepare for his or her case. As it was pointed out
in one of English cases, Woolmington vs. DPP (1935), that the case
which set the law on how far the prosecution must prove its case to
get conviction.
* As judiciary is the custodian of all the enacted laws, thus their
implementation and application should encounter the aspirations of our
people. In this respect the charges inflicted on the accused person as
criminal offences which demand bail for six or two months before the
trial, must be categorized and marked clearly to avoid inconvenience.
* In my view, there should be an amended article or clause in the next
Permanent Constitution that provides as follows on bail: where a
person is arrested in respect of criminal offence and for the case
triable only by the High Court; if that person has been remanded in
custody for six months before the case is committed to the High Court,
that person shall be released on bail on certain conditions which the
court may reasonably consider. Otherwise clause 4 of the said article
19 in Transitional Constitution is not enough and thus there's no law
governing bail except Criminal Procedure Act, 2008 which falls short
in description in terms of days or months of granted bail.
*
In conclusion, if the above-mentioned issues suggested are due to be
implemented with immediate effect, then the maintenance of our
criminal justice system will come through the exchange of balance act,
protection of the accuser's rights and assurance that justice is seen
to be done is done. Additionally, this case which seems to be very
much interesting, may later on invite devil's advocates who will
express their opinions in order to provoke the debate in public
domain, since the judges have avoided the trial in camera. Lastly but
not the least, the non-procedural grant of bail by the executive will
be another implication of the court to proceed with the prosecution of
the accused coup plotters as well as lack of substantial evident
raised by the lead defend lawyers in the special court formed by the
President of Supreme Court under the provisions of section 16 of the
Code of Criminal Procedure Act No.5 of 2008.
The author is a Legal Practitioner who lives in Juba. Email him at
[email protected]
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