The Death of the Rule of Law in South Sudan: The Case of Eastern Lakes State
7 min readBy Tong Kot Kuocnin, Nairobi, Kenya
February 17, 2017 (SSB) —- The rule of law is a cornerstone of contemporary constitutional democracy as underscored by its role in cementing good governance and respect for human rights. The rule of law requires that the state only subject the citizenry to publicly promulgated laws and that no one within the polity be above the law. The rule of law doctrine envisages that the power of the state and government be only exercised in consonance with applicable laws and set procedures.
The three essential characteristics of modern constitutionalism are limiting the powers of the government, adherence to the rule of law and the protection of fundamental rights. However, in the absence of the rule of law and respect for human rights, contemporary constitutional democracy would be impossible. Beyond that however, it is not clear what characteristics the rule of law must possess to help sustain its folds and respect for human rights, what specific role it must ensure with regards to individual rights and liberties, and how it might ultimately contribute to help respect human rights of the people and protect their lives in Eastern Lakes State.
In this article, I shall labour to bring to forefront why upholding respect for human rights and the rule of law matters for the present and future Eastern Lakes State. I know many people, who are aligned to the present government in the state will fail again to comprehend the essential dynamics of what it means to respect human rights of the people and thus misconstrue the essence of this article for their good conscience tells them not to tolerate any criticisms regarding all mistakes and shortcomings of the government.
Their good conscience do tell them not entertain any critical intellectual writing about failures of the government, instead of taking, for their beneficial use, such ideas which they misconstrued as dissenting, and hence disparaging the good image of the government forgetting other people’s rights to freedom of expression in matters that affects them.
This is author isn’t bothered by such empty rhetoric. However, as the title to this article suggested, it is to be pinpointed with dismay that the callous brutalizing way our state government has been dealing with human lives is in a blatant violation of international and regional human rights principles and standards to which South Sudan is a party as provided for under article 9(3) of the Transitional Constitution of the Republic of South Sudan, 2011 (as Amended in 2015).
There has been series of shocking events where many citizens lost their lives just in the hands of the government which is indeed tasked with an obligation to defend and protect their lives and properties. A sizeable number of innocent people (innocent until otherwise proven by the court of law) have lost their lives in the hands of government officials since the current government came into existence. The words of Martin Luther King from Birmingham jail truly remind me that there is a distinction between law and justice.
The law, even if it is uniformly applied does not in itself guarantee a just result. This is supplemented by article 39 of the most celebrated Magna Carta (1215), which states clearly that ‘No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land’.
I humbly concur with Dr. King who submits that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for the law.
This is true in the sense that the application of the uncodified, unjust and draconian law which the government of Eastern Lakes uses on the perceived criminals is different from how it should have been used to deter those perceived criminals, if at all they exists.
This is so because the rule of law is intended to promote stability, not impunity, but as a society that has subscribed to operates under the rule of law, we must remain vigilant to ensure that the rule of law serves the interest of justice because the continued strength of the rule law depends on individuals who are willing to risk punishment in pursuit of justice.
Under rule of law and respect for human rights, neither laws nor the procedures used to create or implement them should be secret, and the laws must not be arbitrary. From the very beginning, our national constitution and other laws have laid down great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law.
This noble ideal clearly laid down by our constitution cannot be realized if poor man in Eastern Lakes State charged with petty crimes has to be shot dead by the authorities without any due process of the law. This is a clear violation of the right to life and human dignity as provided under article 11 of the Transitional Constitution of the Republic of South Sudan, 2011 (Amended 2015).
Our jurisprudential understanding of the rule of law is the protection of certain basic rights because the rule of law is linked to efforts to promote protection of human rights worldwide. Respect for human rights and the rule of law is a platform for community’s opportunity and equity and is essential to addressing the most persistent harmful ills that existed and which are commonly meted onto the most innocent in our State.
Yirol was the most peaceful and stable area in greater lakes before the partition of Lakes State into three States. Our people are both law abiding citizens and peace loving communities. They have coexisted peacefully until they got their share of demand for the state. However, while under the leadership of their own sons and daughters, our people continue to face a myriad of repressive treatments.
People in Yirol are subjected to intimidation, subjugation, arbitrary detention, torture and killing. Government response to these myriad of rights violation has been disappointing, marked by lack of political will and accountability, blatant malevolence and a disregard for human life. Yet, international human rights advocates remained tenacious, not inciting massive protests and public condemnation in an effort to demand for an end to the culture of impunity that has cropped up in Yirol.
Some of the most outrageous travesties of justice that captured our attention and had us up in locking horns with the state government remained unattended to and many atrocious violations and abuses are continuously being meted on the innocent people. The law presumes everybody to be innocent until proved otherwise by the duly constituted open court of law. Nobody has the power to take away other people’s lives except and unless it falls within the ambits of the law.
The law is very clear. There are standards and procedures laid down by the law in both criminal and civil matters. It is a serious violation of the provisions of the constitution which is the grundnorm governing this country if someone sited somewhere decides to take away innocent people’s lives without any adherent to the due process of the law as laid down in our constitution and other legislations governing the conduct and proceedings regarding criminal and civil matters.
It is indeed a travesty of justice if people are extra-judicially executed by a body not designated by law to impose such penalties and sentences. There can be no free society without law administered through an independent judiciary. If one man can be allowed to determine for himself what is law, then every man can, and this first means chaos and then tyranny.
When we talks about rule of law and respect for human rights, we assume that we’re talking about a law that promotes freedom, a law that promotes justice, and a law that promotes equality. With current violations and abuses of human rights in Eastern Lakes State, the true meaning of the rule of law has been diverted from and its special meaning has been distorted and immersed into the mud of injustice.
As based on our historical constitutional jurisprudence of looking to the law to fulfill the promises of freedom, justice and equality set forth in our nation’s founding document, the true meaning of the rule of law and respect for human rights has been lost. #Bring to Justice the Murderers of Pokic Madit Maker# Rest in Peace brother for your innocent life will hunt those who took it away for the rest of their lives.
The writer is a Master of Laws Candidate at the College of Law, University of Juba and a Practicing Barrister at Law before all courts in South Sudan. He can be reached via: tongbullen@gmail.com
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