Will the Court of Appeal deliver justice to the 16 people sentenced to
life imprisonment in South Sudan?
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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.
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