EXPLAINING THE CORRECT LEGAL TERM FOR THE RELEASE OF FOUR DETAINEES
By Gordon Buay Malek
Dear all,
The release of Pagan Amum, Oyai Deng, Majak Agot and Lol Gatkuoth has been misunderstood by so many people. Some misundeertood what the prosecution did and concluded that “they were acquitted”. However,there is something you need to know when people talk about “acquitting”. The four detainees were NOT acquitted. That word is not applicable here because they were not released by the decision of the judge after the conclusion of the adversarial presentations.
I want to make it clear to the people of South Sudan that what happened, to use correct legal term, is that the charges are STAYED. This is different from WITHDRAW. I explain the difference between the two below.
In most legal jurisdictions, the decision of the prosecutor to STAY or WITHDRAW charges means the government discontinues the prosecution. In both situations, once your charges are withdrawn or stayed by the prosecution, you don’t have to go back to court. HOWEVER, there is one important difference between charges which are STAYED and charges which are WITHDRAWN.
Stayed charges can be BROUGHT BACK TO LIFE within one year of the day they are stayed. You should know that if you are charged with new offences during the one year period after you have had charges stayed, the stayed charges could be brought back and the prosecutor can prosecute you on those same charges again.
If charges are WITHDRAWN, the prosecution of those charges is FINISHED and those same charges can never be brought back.
Coming back to the case of the four criminals, their charges were STAYED because of peace and international pressure. If they join the rebellion of Riek Machar, their charges will be REACTIVATED and they will be tried in absentia and sentence to death if found guilty.
I hope my explanation is clear to you guys.
Gen. G.B.
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By Vigilio Wani (In Response to Gordon Buay
Nobody knows what type of legal system Cde Buay is talking about sound like Banana Republic legal system. There is NO such thing in legal system as STAYED charges, but there is stay execution and a stay of proceedings in the court system and they are granted by a court not PROSECUTOR in civil court not in criminal court. A stay of execution postpones the enforcement of a judgment against a defendant who has lost a case. In other words, if the defendant wins money damages or some other form of relief, he may not collect the damages or receive the relief if the court issues a stay. For example if you are delinquent in your rant and landlord brought eviction notice against you, you can go to court and file MOTION to stay by law judge will grant you motion to stay at most three months. Every other civil judgment is stayed for ten days after it is rendered. An additional stay of execution lasts only for a limited period, but a court may grant a stay of execution in any case in which the court feels the stay is necessary to secure or protect the rights of the defendant. I had an internship with court in accounting department I know this stuff.
A second type is stay of proceedings basically is the stoppage of an entire case or a specific proceeding within a case. This type of stay is issued to postpone a case until a party complies with a court procedure. For example, if a party is required to deposit collateral with the court before a case begins, the court may order the proceedings stayed for a certain period of time or until the money or property is delivered to the court. Also, a court may stay a proceeding for a number of reasons. One common reason is that another action is under way that may affect the case or the rights of the parties in the case. For instance, assume that a defendant faces lawsuits from the same plaintiffs in two separate cases involving closely related facts kind like army’s length. Say one case is filed in South Sudan Supreme court, and the other case is filed in Kator (B-court) in Juba assumed CES established its own judicial system. In this situation one of the courts may issue a stay in deference to the other court. The stay enables the defendant to concentrate on one case at a time.
With regard to withdrawal however, a lawyer or prosecution can withdraw evidence from the court if she or he is facing difficulty in proving it due to lack or substantiations of evidence or when witness refused to appear in court in this situation the party can withdraw evidence per judge permission. Basically when defendant left court she or he can not be prosecuted again on same charges due to status of limitation which protect defendant from prosecution from same case in the future in event new evidence emerged.
As things stand now the four (4) detainees are free men now they are in their liberty to do whatever they want in their life like any citizen with full rights granted to them by constitution. Cde Buay should stop misleading public with convoluted legal lexicon in other countries he could be charge by harassment and civil disorder.
Stay blessed
Vigilio
About Post Author
Thanks to Gordon for raising this important matter. Like him, I thought that a ‘stay’ meant a postponement which could be reactivated. Then I read about the Court President referring to Sections 25 and 49 of the Code of Criminal Procedure 2008. So I looked it up, and it seems that in South Sudan the Justice Minister can order a ‘stay of criminal proceedings’ in any case on ‘reasonable grounds’. And when he/she does so, the case automatically ‘lapses’, and then ‘no other criminal case based upon the same facts shall be initiated’.
I’m not a legal expert, but it seems to me that this could leave room for the government to arrest the four again and charge them again with coup-plotting, but using different evidence which was not presented in the first trial. South Sudan Tribune has reported President Kiir as saying that any time they (the released suspects) are needed, they can be recalled and the criminal procedures reviewed. It is also reported that he has ordered the four to be prevented from travelling out of the country, although I do not know on what legal basis.
Isn’t the Code of Criminal Procedure seriously flawed in allowing the executive to order the court to stop to a trial (as opposed to allowing the government prosecutor to drop charges)? Doesn’t it undermine the integrity of the legal process and the independence of the judiciary?
When we talk of law, we must be specific. The stay of criminal proceeding is done according to criminal procedures act under article 25 that gives powers to minister of justice to stay a case under reasonable ground. This ground can be the issues for public interest such as peace and reconciliation. Section 46 (1)d of the same act talks of elapse of case that includes the stayed case. 46(2) also stated that no way where by which stayed case can be revived. So for those who want to talk of the legal theories that are incompatible with our law should study our laws in order not to confuse the public.