The Case of Arbitrary Arrests and Detentions in South Sudan: A Juristic Analysis
11 min readBy Tong Kot Kuocnin and Ms. Yar Telar Deng, Nairobi, Kenya
Wednesday, March 20, 2019 (PW) Abstract: This paper deals with the “Rights of arbitrarily arrested and detained persons in South Sudan”. It is based upon the juridical norms of criminal law which presumes that the “thousand of accused persons can be punished but one innocent shouldn’t be punished arbitrarily”.The paper explicitly articulate that one of the basic tenets of our legal system is the benefit of the presumption of innocence of the accused person till he/she is found guilty at the end of the trial conducted by a dully constituted open court of law based on the evidence gathered. The reason being that the rights of an accused person not to be arbitrarily arrested and detained are sacrosanct. The accused in South Sudan are accorded certain rights, the most basic of which are found in the South Sudanese Transitional Constitution, 2011.
I. Introduction
There are several key pieces of legislation in South Sudan that relate to arrest and detention, most notably the Transitional Constitution of South Sudan, 2011 and the Code of Criminal Procedure Act, 2008.
The Transitional Constitution 2011 sets out a comprehensive Bill of Rights that promotes life and human dignity, personal liberty, equality before the law, the right to a fair trial and freedom from torture. The Code of Criminal Procedure Act, 2008 sets out the procedures for arrests and detentions and allocate powers to the relevant authorities.
While the laws of South Sudan are consonant with the requirements of the of the international framework in many regards, the right not to be arbitrarily arrested and detained have not been adhered to.
This paper attempts to examine and analyze the factors that play a role in arbitrary arrests including political interference, inadequate police training, discrimination and corruption that influences arbitrary arrests and detention.
II. The Concept of Arbitrary Arrest and Detention
The arbitrariness is a two-stage process, which addresses, firstly, whether the deprivation of the liberty of the arbitrarily arrested person has a source (force) in law. The second stage concerns the relationship of the deprivation to a legitimate government purpose. For even if deprivation is authorized by law, if it fails to serve a legitimate purpose, it is arbitrary.
However, as with arrests, international law includes a number of procedural safeguards relating to detention under the International Convention for Civil and Political Rights, specifically the right to be informed of a criminal charge,[1] the right of persons detained on criminal charges – the 48 hour rule,[2] the right of habeas corpus[3] and the right to compensation for unlawful arrest or detention.[4]
The Transitional Constitution of South Sudan affirms the right to be informed of a criminal charge.[5] It also notes the following in relation to the rights of persons detained on criminal charges:
“A person arrested by the police as part of an investigation, may be held in detention, for a period not exceeding 24 hours and if not released on bond to be produced in court. The court has authority to either remand the accused in prison or to release him or her on bail”.[6]
III. The Constitutional Foundation on Arbitrary Detention in South Sudan
From the outset, South Sudan has included similar articles in its Transitional Constitution, 2011, which is the supreme law of the land, to provisions contained in international law.
The International standards require that arrests and detentions are carried out according to lawful procedures and that arrests and detentions are not the outcome of any conduct deemed arbitrary. However, the Universal Declaration of Human Rights (UDHR) 1948, prohibits arbitrary arrest, detention or exile under article 9,[7] and the International Covenant on Civil and Political Rights (ICCPR), describes arbitrary arrest further:
“Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law”.[8]
Equally, the Transitional Constitution of South Sudan (2011) contains a Bill of Rights that contains an almost word-for-word provision as in the ICCPR, stating:
“Every person has the right to liberty and security of person; no person shall be subjected to arrest, detention, deprivation or restriction of his or her liberty except for specified reasons and in accordance with procedures prescribed by law”.[9]
The Transitional Constitution also corresponds with international law on arrests based on discrimination. It affords citizens:
“Equal protection of the law without discrimination as to race, ethnic origin, colour, sex, language, religious creed, political opinion, birth, locality or social status”.[10]
While these provisions are promising and indicative of the will of the government to establish a human rights-based approach to governance, international law goes further to set out a number of procedural safeguards that the police must observe. Some of these are not included, or are not precisely formulated in South Sudanese law.
International procedural safeguards require that police officers identify themselves;[11] give the accused the reasons for their arrest;[12] inform them of their rights and record information about the arrest;[13] inform relatives at the time of the arrest;[14] and inform consular authorities if the person is a non-citizen.[15]
Thus the paper reviews as to what extent South Sudanese law provides for these procedural safeguards for arrest. The Bill of Rights in the Transitional Constitution speaks to the right to a fair trial.[16] It states:
“Any person who is arrested shall be informed, at the time of arrest, of the reasons for his or her arrest and shall be promptly informed of any charges against him or her”.[17]
In addition, the Code of Criminal Procedure enables an arrested person to contact his or her advocate,[18] and provides that an arrested person may inform his or her family. If the arrested person is a juvenile, or suffering from a mental infirmity (so that they are unable to contact their family), the police, Public Prosecution Attorney, Magistrate or the Court shall, ‘on its own initiative notify the family or the appropriate body’.[19]
While the Police Service Act (2009)[20] requires that police carry on them identification at all times, the law does not spell out that these officials should provide identification at the time of an arrest. It also neglects to include any clauses that require police to inform the consulate of non-citizens. The Code of Criminal Procedure Act (2008) details further procedures surrounding arrests but, problematically, provides for a range of institutions to be involved in the process. According to this law, cases are to be initiated and overseen by the Directorate of Public Prosecutions (DPSS).[21]
Appeals against the initiation of cases are to be made to a Senior Public Prosecutor and then to a Court of Appeal.[22] The police are to carry out investigations according to the directives of the Directorate of Public Prosecutions,[23] and may only initiate an investigation in the absence of a Public Prosecutor,[24] (with absence meaning that no one has been appointed as a prosecutor or that s/he is absent and no substitute has been appointed).[25]
These defined roles require good communication and cooperation between the South Sudan Police Service (SSPS) and the Directorate of Public Prosecutions for arrests to be carried out successfully and in accordance with human rights standards. This is a challenge given the lack of transport, absence of coordination mechanisms and a limited budget for communication. It is vital that the government prioritize mechanisms of communication and cooperation between these agencies, particularly by the Directorate of Organized Forces.
The powers of arrest have been given to any Public Prosecution Attorney, Magistrate or Court,[26] the police, traditional Chiefs,[27] and private persons (only if directed by a Public Prosecution Attorney, proclamation or if the person has escaped arrest).[28] This can lead to confusion between different institutions and disagreements over jurisdiction.
In addition, there may not be consistency in terms of the understanding of human rights standards and procedural safeguards across these institutions. For example, traditional authorities have been known to act without regard to these standards.[29] Although the incorporation of Chiefs into the system may be useful in that they are often in a position to know who the criminals are in a community and because they have a strong social standing, Chiefs require training on how to carry out arrests within the framework of human rights standards.
Furthermore, there are no accountability mechanisms for Chiefs who make erroneous or arbitrary arrests. In addition, customary courts often deal with criminal cases and cite provisions from the Penal Code, despite the lack of training on statutory criminal law and other procedural rules.[30]
It is recommended that the law reflect that a Chief immediately inform the police to be present during an arrest, that Chiefs be trained to effect arrests using the appropriate procedural safeguards during arrests and that the jurisdiction of customary courts be clarified.
IV. Is Arbitrary Detention a Human Right Violation?
The question that begs itself under this heading is that: Is arbitrary detention a human right violation? the answer is in the affirmative if arbitrary detention is the violation of the right to liberty then it is a human right violation. This is due to the fact that arbitrary arrest or detention is the arrest and deprivation of liberty of a person outside of the confines of nationally recognized laws or international standards.
Equally, on that note, international treaties maybe implored to guarantee the right to liberty if national laws protect the individual in an incomplete or partial manner. Arbitrary arrest or detention may also be illegal without being arbitrary and vice-versa.
The illegality simply means that the law has not be followed or complied with. In this sense, arbitrary refers to the inappropriate, unjust, unforeseeable or disproportionate nature of the detention. Arbitrary arrest or detention exposes the victim to more human rights violations since they are deprived of means to defend themselves from extrajudicial execution, enforced disappearances, torture and other cruel, inhumane or degrading treatment.
The right to personal liberty is defined by Article 9 of the International Covenant on Civil and Political Rights, which outlines the conditions that render detention arbitrary, especially when: the grounds for the arrest are illegal, the victim was not informed of the reasons for the arrest, the procedural rights of the victim were not respected, the victim was not brought before a judge within a reasonable amount of time.
In certain cases, arbitrary detention can be considered as a war crime (Article 8 of the Rome Statute), a crime against humanity (Article 7 of the Rome Statute) or a crime of genocide. During a period of conflict or tensions, arbitrary detention can become a large-scale political tool of intimidation, often used in combination with other violations, such as the suppression of individual liberties, extrajudicial executions, and enforced disappearances etc.
Thus, many International and regional human rights organizations have also intervened in cases of arbitrary detention which take place in the context of generalized suppression, especially when human rights defenders are targeted by such practices. These International and regional organizations, in collaboration with local lawyers, supports victims in their pursuit of justice on a national and supranational level in many countries. In fact, it is relatively rare that victims of arbitrary arrest and detention and their loved ones obtain justice in their own countries, since the crime often occurs in a climate of persecution.
V. Conclusion
Arbitrary arrest and arbitrary detention are the arrest or detention of an individual in a case in which there is no likelihood or evidence that they committed a crime against legal statute, or in which there has been no proper due process of law or order.
Virtually all individuals who are arbitrarily arrested are given no explanation as to why they are being arrested, and they are not shown any arrest warrant. Depending on the social context, many or the vast majority of arbitrarily arrested individuals may be held incommunicado and their whereabouts can be concealed from their family, associates, the public population and open trial courts.
Many individuals who are arbitrarily arrested and detained suffer physical or psychological torture during interrogation, as well as extrajudicial punishment and other abuses in the hands of those detaining them.
Arbitrarily depriving an individual of their liberty is prohibited by the United Nations‘ division for human rights. Article 9 of the 1948 Universal Declaration of Human Rights decrees that “no one shall be subjected to arbitrary arrest, detention or exile”; that is, no individual, regardless of circumstances, is to be deprived of their liberty or exiled from their country without having first committed an actual criminal offense against a legal statute, and the government cannot deprive an individual of their liberty without proper due process of law. As well, the International Covenant on Civil and Political Rights specifies the protection from arbitrary arrest and detention by the Article 9.
Tong Kot Kuocnin holds Bachelor of Laws (LLB) Degree from the University of Juba and a Master of Laws (LLM) specializing in Law, Governance and Democracy from the University of Nairobi. He is an Advocate before All Courts in South Sudan. His areas of research interest include: Constitutional Law and Human Rights, Rule of Law and Good Governance.You can reach the authors via their respective email addresses: Yar Telar <yartelardeng@gmail.com> and Bullen Tong<tongbullen@gmail.com>
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[1] International Covenant on Civil and Political Rights, article 9(2), http://www2.ohchr.org/english/law/ccpr.htm, accessed 16 January 2013.
[2] Ibid, Article 9(3).
[3] Ibid, Article 9(4).
[4] Ibid, Article 9(5).
[5] Article 19(2) of the TCSS, 2011 (Amended) 2015.
[6] Ibid, Article 19(4).
[7] Article 9 of UDHR, 1948.
[8] Article 9 of the ICCPR, 1966.
[9] Article 12 of the TCSS, 2011 (Amended) 2015.
[10] Article 14 of the TCSS, 2011 (Amended) 2015.
[11] ECOSOC Council, Commission on Human Rights, Civil and Political Rights, including the Questions of Torture and Detention: Torture and other cruel, inhuman or degrading treatment or punishment, Report of the Special Rapporteur, Theo van Boven, UN Doc E/CN.4/2004/56, 23 December 2003, [30]–[31].
[12] Ibid.
[13] Ibid.
[14] Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, principle 16, and Standard Minimum Rules for the Treatment of Prisoners, rule 92.
[15] International Convention on the Protection of Migrant Workers and their Families, article 16(7); Vienna Convention on Consular Relations, article 36(1)(b); and Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, principle 16(2).
[16] Article 19 of the TCSS, 2011.
[17] Ibid, Article 19(2) of the TCSS, 2011.
[18] Code of Criminal procedure Act, 2008, Section 93(2).
[19] Ibid, S. 93(4).
[20] Police Act, 2009, S. 82.
[21] Code of Criminal Procedure Act, 2008, S. 23(1)(a).
[22] Ibid, S. 24.
[23] Ibid, S. 27(2).
[24] Ibid, S. 31(1).
[25] Ibid, S. 31(2).
[26] Ibid, S. 75.
[27] Ibid, S. 76.
[28] Ibid, S. 77.
[29] Human Rights Watch. 2012. Prison is Not For Me, http://www.hrw.org/sites/default/files/reports/southsudan0612_forinsert4Upload.pdf, accessed 3 July 2012, p.46; see also United States Institute for Peace. 2010. Local Justice in Southern Sudan, p.58, http://www.usip.org/publications/local-justice-in-southern-sudan, accessed 17 January 2013.
[30] Ibid, P. 46.
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