Is the use of extra-judicial action to control crime illegal: The case of Gok state in South Sudan?

By Daniel Juol Nhomngek, Kampala, Uganda

May 12, 2016 (SSB) — The issue whether an action is illegal or not can only be answered within the context of a given community. In real sense, no action is considered illegal in law if it is based on need; i.e. on necessity.

The law has developed a doctrine of necessity to validate an action that otherwise would have been illegal but for the necessity the action is declared legal.

As shall be discussed in details in the latter part of this work, the doctrine of necessity validates illegal action where there is a greater needs to save the society from falling into a greater danger.

However, in most cases, many lawyers do not understand this illegal-legal aspect of the law. They do not understand that law as a product of human conduct changes with the change of the society and also ready to adjust in accordance with the needs of the people.

The above is a practical aspect of law. Nonetheless, some lawyers follow the law dogmatically up to the point where the law is overthrown by the society. This happens when the society is subjected to bad law by authorities with the support from lawyers for the fear of change or for the protection of other interests beyond the law.

 Hence, the continued existence of the law that is no longer relevant to the needs of the people has a very serious implication. Such a law can make the people revolt against it and the establishment in general in order to overthrow the system. This was the cause of Arabs’ spring in the Arab World in 2011.

Thus, any serious lawyer concerns with the welfare of the society must read beyond the law in order to understand the applied law. The applied law is the law in practice covered by morals and interests of the community.

There is a difference between applied law and law in text books and statutes though the both share the same principles. For one to understand and appreciate this difference, he or she must read even beyond what is in law text books and statutes. This was what I did when I joined Makerere University Law School in 2010.

Before joining law school, I had a different view of the law. The view I had by then was that the law was different from society. The society, as I thought by then was as if dependant on law and law would never be affected by the societal behaviour.

Hence, it was my understanding that once the law is made the society has no alternative but to obey the law no matter how bad that particular law might be.

However, as I progressed in my reading of law in different jurisprudential text books, attending some public lectures and training in some clinical education and community mobilization and sensitization to create awareness on how to protect community rights against authorities in Uganda, I learned that the law and society depend on each other for their survival because one influences the other.

For instance, when the law is bad the society demands that such law be repealed or amended in order to suit and protect their interests. However, if the authorities refuse to amend or repeal it, the society will overthrow that particular law or a provision of that law by refusing to obey it.

Thus, such a refusal is always explained by strikes, demonstration or even illegal activities beyond the law. When the activities of this kind are experienced in the society, then a serious lawyer must be able to understand that the law has reached its limit and advises the authorities accordingly.

The limit of the law as Oliver Wendell Holmes, Jr., the renowned American Jurist in his work, The Path of the Law, 10 Harvard Law Review 457 (1897) explains, people will not obey certain law not because it is enacted badly but because it affects people.

On limitation of law Oliver Wendell Holmes, Jr observes that the first thing for a businesslike understanding of the matter (the law) is to understand its limits. The limits of the law according to him are found when we differentiate the law from morality.

In this regard, Oliver Wendell Holmes, Jr was attempting to reject the original understanding of law by different legal scholars who understand law in term of positive law devoid of morals.

Originally, law was understood and defined in term of positivism, which according to John Austin (in his Book the Province of Jurisprudence Determined) defines positivelaw as a series of bothexplicitandimplicitcommandsfrom a higherauthority.

 Austin in his book above, for instance, explains how the law used to be understood by his time. He stated that the law reflects the sovereign’s wishes and is based on the sovereign’s power, which is backed by sanctions and punishment.

According to Austin, positive law is not the same as divine law or human-inspired moral precepts as Thomas Aquinas explained in his Book Summary of Theology.

Viewing the law in this way, Austin did not so much question what the law ought to be but revealed it for what he thought it was. Thus, analytical Jurisprudence by John Austin sought to considerlaw in theabstract,outside of itsethical or dailyapplications.

In Austin’s view, religious or moral principles should not affect the operation of law.

However, the explanation of law above by Austin was modified by Hans Kelsen’s Introduction to Pure Theory of Law in which though he agreed with Austin, he did acknowledge that the source of law may not necessarily be a sovereign. According to him, the source of law is a basic norm that all laws must obey.

Thus, Kelsen in forming a hierarchy of laws, he stated that a Basic Norm (or, Grundnorm) to which all other norms are related to each other is by either being inferior norms, when the one is compared to the other, or superior norms.

Grundnorm as Kelsen explains in his work means that norm, which is above any other norms and all norms must obey it in order to be effective. This further means that even people can be a Grundnorm since if they refuse to endorse the law and by implication, such a law is rendered ineffectual.

In other words, Kelsen is explaining the fact that in the hierarchy of laws, there is a law that is above all other laws which other laws subordinate to it must obey in order to be valid.

It is that validity of the law, which H.L.A Hart in His Book, the Concept of Law referred to as efficacy of law.  In The Concept of Law, Hart provides an explanation to a number of traditional jurisprudential questions such as “what is law?”, “must laws be rules?”, and “what is the relation between law and morality?”

 Hart answers the above questions by placing law into a social context while at the same time leaving the capability for rigorous analysis of legal terms, which in effect “awakened English jurisprudence from its comfortable slumbers as noted by Gerald Postema (see; Postema, Gerald (2011). Enrico Pattaro, ed. Legal Philosophy in the Twentieth Century: The Common Law World. A Treatise of Legal Philosophy and General Jurisprudence 11. Springer. p. 261).

Hart explains the law in term of efficacy that when majority of the people obeys the law and follows it then it efficacious or effective. This takes us back to the Kelsen understanding of law in term of Grundnorm, which means that Grundnorm is not only a sovereign but it may also be the people as long as the law gets it validity from them.

Therefore, being Groundnorm, the acceptance of the people of a certain illegal act validates such an act and the law accommodates it based on the doctrine of necessity.

Notably, the two known countries that have used the concept of necessity to accommodate illegal acts were Uganda and Pakistan. In these two countries, coups were recognized as legitimate means of changing the government. This was because the population supported those coups hence valid.

The support of the people given to those coups made Court to rename them as revolution in law. Hence, the revolution in law is valid only if majority of the people obey the new law or revolution by following it.

The explanation of law and its validity above shows that law which is not in the best interest of the people will never be effective. In order to make this point clear, there is a need to refer to Oliver Wendell Holmes, Jr again in the Path of the Law.

In the Path of the Law, Holmes, Jr explains to show that law is only valid if obeyed by people by using the German population as a reference point. Holmes, Jr made a reference to the late Professor Agassiz whom he quoted as saying: “a German population would rise if you added two cents to the price of a glass of beer. A statute in such a case would be empty words, not because it was wrong, but because it could not be enforced”.

As seen above, a law can only be effective if obeyed by the people. Thus, the law that does not protect the welfare of the people is wrong law as people will not obey it.

In other words, it does not matter whether the law was passed by duly elected parliament or not. What matters is whether such a law can be obeyed by the majority of the people. This takes me to the real question which this article is attempting to answer as to whether an extra-judicial action in Gok State to control crime is illegal.

Of course, many lawyers who are not well informed about the intricacies of the law in practice will put a big “Yes”.

However, to me the real answer to this question depends on many things and the willingness of the public in general to obey it, which in turn is determined by the stage of development of that society.

In the advanced countries such as the USA, Germany, Australia, Canada and many other countries in the same category, it may be deemed illegal.

Nonetheless, even the countries I have referred to above had in one time in history used extra judicial killings or extra judicial way of governance in order to control crime and bring reform to their population.

 Great Britain for instance, used extra judicial killings when it executed sixteen Irish Nationals that spearheaded the 1916 Irish Revolution that later became known as the Easter Rising. This is because the revolution broke out during the Easter season.

The leaders of Easter Rising were executed all in May 1916 after being punished through Court Marshall though they were civilians. Besides, in recent times, British Government and its Agencies used extra judicial killing to deal with IRA rebels whom it referred to as “Terrorists”.

Germany was another country that adopted extra judicial killings to achieve the stability and the Unity of Germany. In 1862, Minister President of Prussia Otto von Bismarck is widely quoted in history to have said  in his speech that “The position of Prussia in Germany will not be determined by its liberalism but by its power […] Prussia must concentrate its strength and hold it for the favorable moment, which has already come and gone several times”.

“Since the treaties of Vienna”, he continued, “Our frontiers have been ill-designed for a healthy body politic. Not through speeches and majority decisions will the great questions of the day be decided—that was the great mistake of 1848 and 1849—but by iron and blood (Eisen und Blut)”.

The above speech is relevant to South Sudan today because there is a need for reform and transformation of both Government and civilians. The reform and transformation desired in South Sudan will not come through the democracy we have today but through vision and mission backed by strong authority to deal with serious issues being faced in South Sudan.

Last but not least, the USA was another country that adopted extra-judicial measures to protect its interests. This was seen during the time of McCarthyism in the cold war era. At that time, extra-judicial methods were applied to control the perceived crimes and threat against the USA.

Joseph Raymond “Joe” McCarthy, from whom the term “McCarthyism” was coined from, was an American politician who served as a U.S. Senator from the state of Wisconsin from 1947 until his death in 1957.

However, beginning in 1950, McCarthy became the most visible public face of a period in which Cold War tensions fueled fears of widespread Communist subversion.

McCarthy was noted for making claims that there were large numbers of Communists and Soviet spies and sympathizers inside the United States federal government and elsewhere.

As a result, during that period, many American people died while others suffered loss of employment and/or destruction of their careers; some even suffered imprisonment.

Most of the punishments in the USA during that time came about through trial verdicts later overturned, laws that were later declared unconstitutional, dismissals for reasons later declared illegal or actionable, or extra-legal procedures that would come into general disrepute.

Also, the extrajudicial killings and forced disappearances have been taking place in the Philippines though they are condemned by the same USA and other countries which used and are still applying the extra judicial killings today in pretext of eliminating the so-called “terrorists”.

The USA and other Countries in the West have adopted summarily execution against some people they considered as threat to them as seen in Afghanistan and Pakistan. For example, the CIA killed Osama Bin Laden summarily in May, 2011 although they would have captured him alive and subjects him to Court process. 

The reason the CIA killed Osama without capturing him alive was that he was a threat to America and its citizens and keeping him alive will increase the threat.

What needs to be understood is that the government uses extra legal method to control crimes and to protect people against such crimes.

In the recent elections in Philippines in May 2016, BBC reported that the Maverick anti-crime candidate Rodrigo “Digong” Duterte won the Philippine presidential elections, following the withdrawal of his opponents.

As the BBC explained, the main reason for Rodrigo Duterte, winning elections was because he applied extra-judicial killings in the Southern City of Davao in Philippines, where he was a mayor and he was able to protect people of Philippines.

Before, he was elected as a mayor of Southern City of Davao, that city was infested with serious crimes that led to the death of thousands of Pilipino. However, he was able to control such crimes by applying extra judicial killings.

I have tried to give various illustrations to show that in reality, it is sometime necessary to apply extra judicial methods to restore law and order as it was applied in Gok State.

Thus, as explained above, the execution of criminals in Gok State is not illegal just because the procedures of law were not followed.

As long as the person executed accepted to have killed or was proved to have killed a person with intention to kill and the State deems it necessary that executing such criminal may help Gok people to achieve stability, peace and security, then the State as a matter of necessity can execute that particular person.

Of course, many people who oppose the application of extra legal procedure in Gok State may see me as callous, inhuman and not acting as a lawyer. They are free to form such opinion.

However, what they have to understand is that the procedure in real criminal law as found in the UK or USA may not be applicable in Gok State or any other cattle keeping communities in South Sudan because of the following reasons:

First of all, majority of the cattle keeping youth in Gok State are animal like as they killed each other with impunity. In other words, they do not have any respect for human rights.

Thus, what the authority needs at the moment in order to reform them is to apply harsh method to control to them so that they fear of their own lives.

It is when the youth fear of being killed if they kill other persons, that is when they will able to respect the rights of others not because they know that others have human rights but because they fear that if they kill other people they will also be killed.

Second to it, at the moment Gok State is deep security crisis and there is an urgent need to contain it. Thus, how to contain insecurity depends on how the population reacts to a method used in containing it.

If the population stops killing each other because one or two criminals are executed then that is the appropriate method the population wants and it should be used by the State.

Thirdly, the law in Gok State was overthrown by the population as it was shown by the state of lawless that reigned. For example, innocent people were being killed, revenge killing was common and theft of cattle was common.

Hence, it becomes necessary for Gok State Government to take serious measures to stop the population from exterminating each other and then after that adopt normal procedures.

Fourthly, article 21(1) of the Transitional Constitution of the Republic of South Sudan of 2011 sanctions death penalty.

Fifthly, other South Sudanese should understand that South Sudan is made up of different groups of communities of which some are backward. This means that for South Sudan to progress there is a need to adopt different method to control and transform cattle keeping youth so that they become productive to South Sudan as at the movement they are counterproductive to the national development.

Thus, for these cattle keeping communities to be transformed into the population South Sudan wants, the different approach which is like colonialism should be adopted with the aim of transforming them.

This is because if we allow the concept of human rights to control the government from effecting the agenda of reform the danger is that the reformation will never be achieved but instead the instability will continue unabatedly.

It is very absurd to see some lawyers arguing that the State should not control crimes by killing an individual yet executing such an individual brings back stability.

As already explained above, the use of illegal means to stabilize the nation is not something new in history. Where the State is faced with serious crimes that make it ungovernable, then the need to adopt extra legal measures to control insecurity becomes a necessity for the State.

Thus, explaining why the doctrine of necessity is relevant in law. This Doctrine is the basis on which extra-legal actions by state actors are validated by law.

The doctrine of necessity has its root in the maxim of law that originates from the writings of the medieval jurist Henry de Bracton, who once wrote, “Let the good (or safety) of the people be the supreme (or highest) law”.

The implication of the above doctrine is that it validates the action of the State actors who may use illegal measures to control crimes or insecurities. Courts have found such measures to be constitutional in modern time.

 For instance, the above doctrine was first used in a controversial 1954 judgment in which Pakistani Chief Justice Muhammad Munir validated the extra-constitutional use of emergency powers by Governor General, Ghulam Mohammad.

 In his judgment, the Chief Justice cited Bracton’s maxim, ‘that which is otherwise not lawful is made lawful by necessity’, thereby providing the label that would come to be attached to the judgment and the doctrine that it was establishing.

In reference to South Sudan or Gok State in particular, there has been arguments that the execution of criminals in Gok State is illegal. The reason given is that the execution was carried out arbitrarily thus illegal. Therefore, the question this argument raises is as to whether the extra-judicial action as a tool for controlling crimes in Gok State is illegal.

As I have pointed out somewhere in this work, the illegality of application of extra legal measures depends on the type of emergency and the purpose for which is it being applied. In this regard and given the conditions that existed before the execution and how the execution has reduced the occurrence of crimes in Gok State, it is hard to argue that it is illegal since it was a necessity to take such an action.

Another argument put forward by the person executed was that he did not intend to kill the person he eventually killed but he wanted to kill other person. This has never been a defense in criminal law because it amounts to transferred malice which still makes one liable to be punished for murder in criminal law.

Briefly, in criminal law, it is enough to prove the guilt of an accused on a charge of murder through establishing that the perpetrator committed the act that led to the death of the deceased with the necessary intention to kill (or dolus).

In that respect, what is to be proved is that a person acts with intention to kill and that intention was accompanied by the object and purpose of killing the deceased.

Thus, it is necessary to stress at this point that although a perpetrator’s intention to kill must relate to the person killed, this does not mean that a perpetrator must know or appreciate the identity of the victim.

For example, a person who causes a bomb to explode in a crowded place will probably be ignorant of the identity of his or her victims, but will nevertheless have the intention to kill those who might die in the resultant explosion.

In addition, the courts have consistently held persons engaged in a wild shootout in the course of an armed robbery to be liable for murder on the basis of their having acted with both intention to kill and rob and shooting at random where persons were killed as a result.

It, therefore enough to show that the person intends to kill and on that basis he actually killed a person. As a matter of law, an identity of the deceased he or she killed is not relevant.

Thus, in this particular case of Gok State, the executed person was guilty of murder though he did not intend to kill the one he had killed as a result.

I must stress here that I should not be seen as rejoicing over the execution of the deceased or to be seen as if I am sanctioning the extra judicial killings carried out by the authorities.

What I am trying to explain in this work is that where the crimes are rampant and are out of hand as seen in Gok State, the State Government is at liberty to use all options within its reach including extra judicial killings for that particular period to control crimes.

However, as soon as the law and order is restored then it will be illegal to apply extra judicial methods to control crimes.

In short, the government of Gok State cannot be blamed for applying extra legal measures to control the crimes because it is within its judgment based on the welfare of the people to see whether the method is appropriate to realize the stability within short time possible.

Hence, it is contrary to the law to sue the governor in his individual capacity. If any person is aggrieved by the action of the governor then the only available option to him or her is to sue the government of South Sudan that employed the governor (based on the principle of vicarious liability applies).

As a general recognized principle of law both internationally and nationally, where a government official commits an act which might have been illegal for that official acting in the ordinary course of administration, then it is the government to be sued not individual.

Therefore, father of the deceased is at liberty to sue the Government of South Sudan not an individual like the governor. However, he can only sue the Governor if he shows that the Governor was executing his son while not in the course of administration.

Finally, as I conclude this article, I would like to warn the central government of South Sudan that if it lifts the immunity of the governor of Gok State, then it will be contrary to the law.

Moreover, the lifting of immunity will also affect effectiveness of fighting crimes in Gok State and people will suffer and because of that South Sudan will be affected.

The government should know today that being government means that it is in the control of the country and their duty is to do what citizens wants not what the West wants.

The interest of Western world is not to bring true peace in South Sudan but keep the country in the indefinite crisis. It is therefore in the best interest of government of South Sudan to ensure that citizens are protected and their lives are improved.

In addition, the government of South Sudan should send a team to Gok State to assess the general situation and the view of the people in order to find out whether the action of governor was illegal or not or it has improved the welfare of the people instead of relying on the messages on the internet which are full of lies and self interests.

I would like also to warn human rights commission, human rights organizations operating in South Sudan and other bodies to stop being one sided. They should avoid coming to the conclusion without first assessing and judging to ascertain whether what they have heard actually happened, instead of relying on the views of the aggrieved individuals.

NB//: the authority is South Sudanese Lawyer residing in Kampala and he can be reached via: juoldaniel@yahoo.com;or +256783579256

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