The law enforcement agencies should understand the difference between civil and criminal cases in South Sudan

Posted: January 17, 2017 by PaanLuel Wël in Columnists, Daniel Juol Nhomngek, Opinion Articles, Opinion Writers

In honour, dedication and praise of SISTER CHARITY NYOMBE GABRIEL MODI (advocate), a South Sudanese lawyer practicing in Juba

By Daniel Juol Nhomngek, Kampala, Uganda

swearing-of-john-garang-after-chukudum-convention

Dr. William Kon Bior Duot, overseeing the swearing in ceremony of Dr. John Garang and Salva Kiir as chairman and deputy chairman in Chukudum, 1994

January 17, 2017 (SSB) — NB//: Before you read the article below you ought to know the following— The author of this article is South Sudanese lawyer residing in Uganda and he can be reached via: juoldaniel@yahoo.com . The article is about criminal and criminal law in South Sudan and it is written in honour and praise of SISTER CHARITY NYOMBE GABRIEL MODI (advocate), a South Sudanese lawyer practising in Juba.

I have been pleased with her for upholding her duty as a lawyer to fight against the crime and upholding the rule of law. Her bravery in taking some time off to teach criminals behind public offices and government vehicles in South Sudan has really touched.  I, therefore, direct those who may have interest in knowing what she did to go to her facebook and get the story which made me very pleased with her.

The story begins as, “I feel so happy this morning for I gave a very important lecture on my way to KCB buluk for free…”As a lawyer, I expected her to teach the criminals and at the same time reminding the police of South Sudan to enforce the law through punishing or warning criminals as she did. I am proud of her.

According to Wikipedia crime in ordinary language is an unlawful act punishable by a state or other authority. The term “crime” does not, in modern criminal law, have any simple and universally accepted definition, though statutory definitions have been provided for certain purposes.

The general rule in criminal law is that something is a crime only if declared to be so by the relevant and applicable law. Nonetheless, there are some crimes which are universal in nature and even if they are not provided for in law they can be punished by the state. These crimes are among others include murder, rape and theft, which are punished by all the States worldwide.

However, when it comes to the rape, it has recently taken various understandings in modern societies to the extent that it has created a controversy. For instance, in some countries like the UK, a husband can rape his wife, while in South Sudan is unthinkable.

 Nevertheless, the fact remains that irrespective of the arguments for and against whether the husbands can rape his wife, rape means forcing a person into sex against his or her will, which means that even in South Sudan if a wife proves against her husband that he forced her into sex against her will then the husband may be punished under the penal code. Nonetheless, that is an argument for another day in South Sudan.

Coming back to our topic, usually for the “act (such an act is called Actus Reus in Latin) of doing something criminal” to classified as a crime it must be accompanied by the “intention to do something criminal” (such intention is called Mens Rea in Latin).

In fact, even if even every crime violates the law, not every violation of the law is considered as a crime. This is because a crime must be clearly provided for under the statute law of the state or under the common law.

In addition, breaches of private law such as torts and that of contract are not automatically punished by the state as crimes but they are enforced through civil procedure by private individuals who feel that their rights in tort or arising out of contracts are violated.

It should however, be noted that there is a different between a tort and a contract.  A tort is loosely defined as a wrong that is committed by someone who is legally obligated to provide a certain amount of carefulness in behavior to another and that causes injury to that person, who may seek compensation in a civil suit for damages.

While a contract is defined as an agreement with specific terms between two or more persons or entities in which there is a promise to do something in return for a valuable benefit known as consideration.  Thus, a tort is a civil wrong arising from an act or failure to act, independently of any contract, for which an action for personal injury or property damages may be brought.

In relation to South Sudan, majority of the people except lawyers do not know that criminal law is different from a civil law. This lack of clear understanding of the difference between the two branches of  law has led to the failure in South Sudan to understand the fact that criminal law is the most important law among all other laws as the only law determines to the stability of the State.

In fact, criminal law is branch of the public law besides the constitutional and administrative laws. Thus, in normal circumstances, the State like South Sudan is supposed to take responsibility for enforcing criminal law and it should have been under the exceptional circumstances under which the private individuals can enforce criminal law in South Sudan.

However, the failure to understand such fundamental aspect of criminal law in South Sudan has led to the institutionalization of crimes in all areas of life. The crime is made as part of political, economic, social and cultural systems. Crime praised everywhere and not seen as a big deal. When the victims of assaults report the cases to the police, the police instead of questioning the criminals turn to the victims to ask them to forgive criminals, which is saddening.

In fact, when one looks at the whole system, it is full of conspiracies.   For instance, big crimes like an attack on women is not seen as a crime, stealing public money is not seen as a crime, killing a person from other tribes is not seen as a crime or grabbing someone’s land is not seen as a crime plus many other crimes that are accepted as part of normal norms of the way of life or condoned.

Such failure of the state leads to the failure of criminal law in South Sudan. Hence, as South Sudanese expect the government to protect them the failure of the government agencies to enforce the law has devastating consequences as it leads citizens to take the law into their own hands in term of mob justice and revenge. This explains why revenge killings, stealing and attacks on women are common among the majority of the people in some of the States in South Sudan.

 The root cause of all these is the failure by State to differentiate between the criminal law and civil law and to know that it has a duty to enforce and maintain criminal law. As a result of such failure, many crimes institutionalized because they are seen as normal part of the system, which makes it hard to fight a crime in an ordinary way.

The clear example is that when an individual Dinka, Nuer or any member of the other tribes from Equatoria commits a crime the crime she or she commits is seen as the action of the whole tribe, clan, family or the community of the wrongdoer.

Such tendency makes it hard to fight crime among the communities. In addition, it makes it even harder when it comes to the enforcement of the law among the law enforcing agencies to enforce the law against their relatives, tribe-mates or friends. Thus, the easiest way is to turn to the victims to plead with them to forgive the culprits irrespective of the injustice the victims has suffered, which is unjust.

The overall implication is that an individual may commit a crime but go unpunished as he or she disappears into the shell of the community or tribes or friends who defend his or her actions.  I have used “he” in this context to show that in most cases majority of the crimes are committed by men.

As a person is protected by their own community or tribe, the hand of the law which is said to be long becomes short as it becomes hard to access that person or the accused or criminal because the whole community or tribe, relatives or friends protect him or her.  This problem comes about partly also because the people who are wronged look at the other tribe or community from where the wrongdoer comes from as wrong doers all due to the action of their, that individual member.

Hence, the wronged community begins pointing their fingers at the whole community or tribe of the wrong-doer.  Consequently, the whole community becomes defensive and protective and the issue of the crime committed becomes a secondary issue. Therefore, the crime becomes institutionalized in tribes, clans or in the family as it becomes the action of the whole group.

On the side of the government, the government officials have institutionalized the fact that laws does not  affect big people and are reluctant to hold the bull at its horn by calling a spade a spade but not a big spoon.  In other words, government officials enforce the law selectively and because of that family, relatives or community of the victim or the accused become dissatisfied with the system or process of enforcing the law hence feeling the sense of injustice.

What needs to be well understood in South Sudan by law enforcers is that the justice system functions properly when people are confidence with its operation. In other words, people should be able to trust the justice system in addressing injustice they suffer at the hands of the wrong-doers.

As pointed out in the above paragraph, it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done if the people are able to maintain law and order. In reality, it is a fallacy to argue that people obey the law because of the police. Rather, they obey the law because they trust it in law in protecting their interests and welfare thus obeying and relying on it.

Due to the fact stated in the above paragraph, all the countries have the responsibility to enforce the law strictly to enforce that confidence of the citizens in maintained in justice system. This is why in some countries like Uganda, Tanzania, and the USA but to mention the few, it is the duty of the government power to enforce the criminal that may lead to severely restricting one’s liberty for committing a crime.

But, before punishing a person of any crime the duty just a duty to carry out investigations that must adhere to well defined procedures and if after investigation and court trial and if an offender is found guilty, he or she may be sentenced to a form of reparation such as a community service depending on the nature of their offense.

One of the big people that recently served the punishment of community service is Silvio Berlusconi, an Italian media tycoon and politician who served as Prime Minister of Italy in four governments. However, if the crime is serious, then a person is supposed to undergo imprisonment such as life imprisonment or, in some jurisdictions, execution.

In summary, I have tried to discuss the importance of criminal law in South Sudan and why the State of South Sudan should understand that it has a duty to protect citizens against all crimes.

In addition, it should also understand that criminal cases are not like the civil cases but they are serious matters that go to the root of law and order and stability of the State.

Therefore, the government officials and state law enforcement agencies particularly the policy in South Sudan must not ask for forgiveness from the victim of assaults to forgive wrongdoers but they must punish or warn wrongdoers to desist from committing the same crimes in second time.

The author of this article is South Sudanese lawyer residing in Uganda and he can be reached via: juoldaniel@yahoo.com. The article is about criminal and criminal law in South Sudan and it is written in honour and praise of SISTER CHARITY NYOMBE GABRIEL MODI (advocate), a South Sudanese lawyer practicing in Juba

The opinion expressed here is solely the view of the writer. The veracity of any claim made are the responsibility of the author, not PaanLuel Wël: South Sudanese Bloggers (SSB) website. If you want to submit an opinion article or news analysis, please email it to paanluel2011@gmail.com. SSB do reserve the right to edit material before publication. Please include your full name, email address, city and the country you are writing from.

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Comments
  1. Kuai Wuoi Matiop says:

    This is a very good observation; people are arrested and taken to Court for civil claims for instance, i two clients arrested by a person who was claiming land the clients were residing on. However, i don’t blame the police much but the Public Prosecution Attorney who receives info and initiates criminal investigations.

    Like

  2. Kuai Wuoi Matiop says:

    This is a very good observation; people are arrested and taken to Court for civil claims for instance, i had two clients arrested by a person who was claiming land the clients were residing on. However, i don’t blame the police much but the Public Prosecution Attorney who receives info and initiates criminal investigations.

    Like

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