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South Sudan Appeal Court says phone wiretapping “unconstitutional”
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May 28, 2017 (NAIROBI) – The Court of Appeal in South Sudan has ruled
as “unconstitutional” a controversial wiretapping system used by South
Sudan National Security Service (NSS) to listen to phone calls.
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Napoleon Adok Gai (Getty image)
The device, which has been a subject of investigations by the United
Nations panel of experts, was acquired by South Sudan from Israel.
In delivering its verdict in the case of the 16 people accused of
corruption in the president’s office, the Appeal Court held that “The
trial judge had erred in facts and law when he convicted accused N0.1
John Agou Wuoi, accused N0.2 Anyieth Chaat Paul and accused N0.8 Kur
Ayuen Kou on illegally and improperly obtained evidence from
wiretapping telephone which violated Article 22 of the Transitional
Constitution of the Republic of South Sudan 2011”.
The court agreed with a precedence cited by Advocate Kiir Chol Deng
and summarised by the learned judges on page 56 of the judgment, which
stated: “Map Vs. Ohio (1962) where the Supreme Court of the United
States of America held that: evidence obtained in violation of the
constitution has to be excluded from State as well as Federal trials,
that is to say the prosecution cannot use evidence gained by illegal
means to convict the accusees, even if the evidence is not obtained in
direct contravention of the letter of the Constitution, where such
evidence is obtained in such manner as to be reprehensible according
to the spirit of the constitution, such evidence shall not be
admitted”.
Another precedence cited and summarised on page 73 of the judgement
read; “I also agree with learned Advocate Kiir Chol Deng in citing the
Kenyan precedent of the appeal of the case of The Republic Vs. Gachoka
and another (1999) EKLR, the court of appeal of Kenya held that “at
the end of the day, it is the duty of the courts to enforce the
provisions of the constitution, otherwise there would be no reason for
having those provisions in the first place”.
The Court of Appeal further to said this on the issue of illegal
searches and arrest carried out by the General Intelligence Bureau on
page 70 of the judgement, “the arrests and search may not have
conformed to provisions of section 75,76 and 77 of the Code Criminal
Procedures Act 2008”.
The accused were arrested under section 7 of the National Security
Service Act 2014, but not convicted under the same section thereof.
The Court of Appeal, on page 65 of the judgment, said “the judge of
the court of instance did not also clarify role of each accused in
commissioning of the offence, that is the link to the whole thing and
these needs to be made clear in the judgement from evidence provided
to the court”.
The judge had never quoted the specific sections of the laws subject
to violations or the charges, nor did he discuss ingredients of the
alleged offences committed by the accused in relation to evidence
adduced by the parties before the court but accused were generally
convicted without specifying acts or role of each accused in
commission of the crime and intention”, it further stated.
The court verdict went further on page 66 stating, “in other words the
trial judge should discuss mens rea and actus reus (action and
intention) of different offences alleged to have been committed by
each individual in order to prove guilt or commission of the alleged
offence beyond reasonable doubt”.
The court cited a precedence of the Sudanese case of Sudan government
Vs Fatima Hussein reported in SLJR 1966 at page 75-80; it has been
remarked in the Sudan by Imam J “it is clear that for any crime to be
complete, generally speaking, requirement of the law concerning mens
rea and actus reus (action and intention) must both be satisfied else
no crime would have been committed and the accused would be entitled
to an acquittal”.
The majority decision of the appeal court ruled on page 64 of the
Court of Appeal Judgement; “it is clear that the trial judge had erred
in law when he decided to sentences the 16 accused persons to
imprisonment for 7 years each for violation of sections 14/15 of
Anti-money Laundering and Counter Terrorist Financing Act 2012 without
conviction. It is also clear from records that the trial judge did not
quote sections 14/15 of AMLACTF of 2012 and discuss them in light of
the evidence adduced before the court by both parties, prosecution and
defence to reach a just conclusion. It is a duty of the Court to
discuss ingredients of every offence by posing questions and answering
the same from evidence availed before it by the parties and the law,
section in question, subject of violations.
In response to some grounds or contentions raised by the defence
lawyers in their memorandum of the appeals presented to the court on
behalf of appellants, the court had this to say to respond to No.4 on
page 71 of the judgement “at this moment NO comment since it is my
view somewhere in this judgement that the judgement of the court of
the first instance be quashed and case papers be returned to the trial
judge to discuss evidence adduced before it with law, that is to
discuss ingredients of the offences with evidence available”.
Appearing in court on 4th May 2016 as prosecution witness N0.24,
Napoleon Adok Gai, the spy- master behind the new advance
communication gadget told the court the phone interception recordings
he played in court as evidence against accused N0.8, Kur Ayuen Kou
were done on his own personal accord. He was not authorised by his
superior like the Director General of General Intelligence Bureau to
monitor phone number either written or verbally.
This particular advance communication wiretapping device sold to the
Government of South Sudan is now a subject of a legal battle in
Israel. This is after an Israeli Member of Parliament filed a lawsuit,
challenging the legality of Israel Defense Ministry decision to keep
selling sophisticated wiretapping spy tools to South Sudanese
government even after the bloody civil war broke out.
Tamar Zandberg, who currently represents Meretz party in the Israeli
parliament, Knesset, filed a Legal case with High Court of Justice
arguing that Jerusalem should stop selling listening devices to Juba
because the tools are being used by the South Sudanese government to
monitor its citizens unlawfully.
In her legal challenge, MP Tamar Zandberg added that she wants the
High Court of Justice of Israel to legally barred the export license
issued by Israeli’s Defense Ministry, saying the license allows South
Sudanese government to keep buying sophisticated listening devices
from the Israeli government.
A recent report released by the U.N panel of experts accused the
Israeli government of supplying South Sudan with high-tech
communications interception equipment.
The report further said that Israel keeps exporting modern spy devices
to South Sudan’s government even after it agreed to a UN request to
stop selling weapons to the violence-wracked nation.
In that report, the panel also alleged that the “advance spy tools”
are being used by Juba to “eavesdrop on its opponents.”
(ST)
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Kind regards,
The Sudan Tribune editorial team.
28 May 22:28, by Kush Natives
I strongly agreed for wiretapping not to be used to track down
money laundering criminals. But, what if money laundering criminals
becomes smartest people then the consitution’s mandate? That wouldn’t
be a case here anyway, as long as those wrongdoers are caught up with
unlawfully acts. They MUST still hold accountable.
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