South Sudan: Who to arrest, detain, search and seize?
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By Luka Biong Deng
December 23, 2014 - I was arrested, detained, deported from Yei with
my properties sought and seized not by police or national security
service but by the Military Intelligence of the Sudan People’s
Liberation Army (SPLA) on Sunday 14th December 2014, when I was
conducting UK-funded research on strengthening institutions of
accountability in South Sudan. After finishing the same research at
the national level (council of states and national legislative
assembly), Western Bahr el Ghazal State and Terekeka County in Central
Equatoria State, I went to Yei as the last area of the research. After
briefing the Deputy Mayor of Yei Municipality and informing him about
the purpose of research, I was arrested at gunpoint, detained for more
than five (5) hours with my properties sought and seized by SPLA
Military Intelligence. I was accused of distributing money to mobilize
Equatorian youth against the government.
I was later released when the Military Intelligence found no money
with me for the alleged mobilization of Equatorian youth but some of
my properties are still seized in their custody. Although this
incident was an isolated event as the command of the Sudan People’s
Liberation Army (SPLA) distanced itself from the event, it raises
fundamental question of which institution in South Sudan is
constitutionally mandated to arrest, detain, search and seize? This
question is important as our parliament will soon discuss the National
Security Bill, 2014 that was hurriedly passed but rightfully returned
by President Salva Kiir to the Parliament to be reviewed in the light
of serious concerns raised by the public about the Bill.
While one appreciates the right decision of President Salva not to
assent to the Bill, the next phase of discussing this Bill should be
subjected to a careful public scrutiny. The way the Bill was passed by
the Parliament may need to be critically reviewed. The parliament has
constitutionally obligation to make public to know about what happened
so that such practice would be avoided in the future. The Parliament
can either undertake its internal audit or to form an independent
investigation committee to look into the way the Bill was passed.
When I was invited by South Sudan Human Rights Commission to be part
of the panel in commemorating the Human Rights Day on 10th December
2014 under the theme “Human Rights Everyday”, I made it clear that the
Transitional Constitution of South Sudan, 2011 defines the mandate of
National Security Service in Article 159 (e) that states: “The
National Security shall be professional and its mandate shall focus on
information gathering, analysis and advice to the relevant
authorities”.
The genesis of this constitutional provision of the mandate of the
National Security Service goes back to the Comprehensive Peace
Agreement (CPA) as Sudan People’s Liberation Movement (SPLM) insisted
to discuss and to clearly define the mandate of National Security
Service in the CPA. Specifically, the Power Sharing Protocol that was
signed on 26th May 2004 stated in section 2.7.2.4 that National
Security Service shall be “professional and its mandate shall be
advisory and focused on information gathering and analysis”. The same
provision about the mandate of National Security Service was included
with the same wording in the Sudan Interim National Constitution,
2005. It is clear that the National Security Service is not
constitutionally mandated to arrest, detain, search and seize.
Unlike the National Security Service, the Police Service’s mission is
clearly defined in the South Sudan Transitional Constitution, 2011 in
Article 155 (2) “(a) to prevent, combat and investigate crime,
maintain law and public order, protect the people and their
properties, and (b) uphold and enforce this Constitution and the law”.
How such mission of the Police Service is to be discharged is detailed
in the Southern Sudan Police Service Act and criminal procedure law
that mandated, with due legal process, the Police Service to arrest,
detain, search and seize.
In revising the South Sudan National Security Service (NSS) Bill,
members of parliament may need to look carefully at the sections of
the Bill that are related to powers of arrest, detention, search and
seizure with the aim of either deleting or carefully reviewing them in
the context of the provisions of the constitution and the due process
of law. In particular Section 12 about the powers and functions of the
NSS should be restricted to the constitutional provisions in Article
155 and as well provided for in sub-section 12 (h) of the Bill. The
other sub-sections ((a) to (g)) of Section 12 of the Bill should be
deleted.
Section 50 of the Bill is about the powers to arrest and it gives not
only the officer of NSS but any member appointed by Minister of
National Security or Director General of NSS the power to arrest
without a warrant and to exercise all the powers of police service in
carrying out the powers and functions of NSS. This is the most serious
Section of the Bill as it contradicts the provisions of Article 155 of
the Constitution as well as creating overlapping of functions with the
Police Service.
This Section 50 of the Bill should be deleted and subsequently Section
51 of the Bill about the rights of a person under arrest, detention
and confinement will be redundant and should also be deleted. The
provisions of Section 51 of the Bill contravene with provisions of
Bills of Right particularly Article 19 of the Constitution about fair
trial.
Specifically, Article 19 (2) of the Constitution clearly states that
“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”. Also Article 19 (4) of the
Constitution states 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.
Specifically, Section 51 (a) of the Bill states that “any person
arrested or detained shall be informed about the charge or charges
against him or her within 24 hours”. As such the Bill provides only
for informing the arrested or detained person about the charges within
24 hours rather than informing him or her at the time of arrest of the
reasons for his arrest as provided for by the constitution. The Bill
is also silent about the period for holding a person in detention as
the constitution makes it very clear that the period for detaining a
person for investigation should not exceed 24 hours.
Other Sections of the Bill such as sections 18 and 52 regarding
complaints against members of NSS and their immunity from criminal
proceedings respectively may require serious revision so as to ensure
that such complaints are adequately addressed and such immunity is not
abused.
It is important that we should strengthen our institutions not by
providing them with excessive functions and powers that may stifle
their effectiveness and may intervene with other functions and powers
of other institutions; a recipe for institutional conflict. With my
personal experience in Yei, it is absolutely important that the role
of Military Intelligence to be clearly defined so as not to overlap
with the functions and powers of police and national security service.
What I have observed in Yei is that the power to arrest, detain,
search and seize is being exercised by police, military intelligence
and national security. This has resulted in conflict between and among
these institutions and has weakened the capacity of security apparatus
to maintain law and order in the area.
Certainly, the National Security Service is an important institution
in the light of increasing security threats facing our new nation.
Internally, South Sudan faces serious challenges that threaten the
very survival of our new nation. Serious economic crimes are being
committed with impunity. The current crisis has equally shown the
narrow national security interests and foreign policies that are
pursued by most of our neighbouring countries to maximize their narrow
national strategic interests in South Sudan. In fact South Sudan has
become a battleground for regional and global interests. With
increased fragility, South Sudan is becoming a breeding ground for
international terrorism, particularly the threat of political Islam at
our doorstep from Sudan. All these security challenges are compounded
by our country being a landlocked country with bad neighbours,
particularly Sudan that will continue to pose a real threat to the
stability of South Sudan.
What our National Security Service needs is not more powers and
functions to arrest, detain, search and seize but rather more capacity
to strengthen its ability to gather information and to analyze such
information and to disseminate such information for relevant
institutions to take actions. If our National Security Service could
be able to collect and analyze internal and external security threats
to our new nation, the relevant institution will be in a better
position to discharge their functions on an informed basis. Rather
than arresting, detaining, searching and seizing properties, the
National Security Service would supply its analyzed information upon
which the Police Service could act on to arrest, detain, search and
seize properties of any suspected person in accordance with the law.
By focusing and specializing in areas of relative comparative
advantage, our institutions would be able to be more effective and
more cooperative rather than competing with each other. Passing a
National Security Service Bill that would strengthen it to perform its
constitutional mandate is a necessity and all of us we should be ready
to assist our National Security Service to become effective and a
reliable source of intelligent information needed to put our country
on the path of peace, prosperity and stability.
Luka Biong Deng is a Director at Centre for Peace and Development
Studies, University of Juba. He is a Global Fellow at Peace Research
Institute Oslo and Associate Fellow at Harvard Kennedy School. Deng
can be reached [email protected], [email protected]
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23 December 21:27, by Whortti Bor Manza
Oh come on Luka Biong. We live together we die together. If this
were to happen to an Equatoria or non Dinka you wouldn’t have believed
it in the first place. No parliament passed this bill. This bill was
passed by the Dinkas from Warrap, NBGS and Lakes spearheaded by Paul
Mayom and Samuel Duar. After all 46 MPSs from Equatoria objected to
that bill.
repondre message
24 December 07:24, by Eastern
Biong was paid in his own currency. Just like former Justice now
among the so-called SPLM-G11 is being haunted by a skewed constitution
he crafted that delivered all powers in South Sudan to Kiir. The
current security bill (returned by Kiir to parliament) will equally
haunt those who passed it in future! What goes around will definitely
come around!
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