What does state responsibility constitute in the context of South Sudan?

WHAT DOES THE STATE RESPONSIBILITY CONSTITUTE IN THE CONTEXT OF SOUTH SUDAN IN THE EXISTING COMMUNAL VIOLENCE?

By Daniel Juol Nhomngek, Kampala, Uganda

Monday, May 27, 2019 (PW) — One of the problems facing citizens in South Sudan is the extent of the duty of the government towards citizens. This problem has also made government to terribly fail in her duty to protect citizens as understood in the modern context.

According to Evan Centanni on Duties and Responsibilities of a Government, modern thinking is that a government’s right to rule comes from a “social contract” with the people, who trade some of their independence for protection and other services. The basic idea of the government duty including the duty to protect which the government owes to citizens has been around for a long time. Even the time for “Mandate of Heaven” that backed ancient Chinese Emperors could be revoked if those emperors did a bad job.

The Mandate of Heaven or Tian Ming literally means “the will of the sky” which was a Chinese political and religious doctrine used since ancient times to justify the rule of the King or Emperor of China. Mandate of Heaven was the theory that heaven embodies the natural order and will of the universe, which bestows the mandate on a just ruler of China, the “Son of Heaven” of the “Celestial Empire”. Hence, if a ruler was overthrown, it was interpreted that the ruler was unworthy, and had lost the mandate.

In addition, Mandate of Heaven was also a common belief among citizens that natural disasters such as famine and flood were signs of heaven’s displeasure with the ruler, so there would often be revolts following major disasters as citizens saw these as signs that the Mandate of Heaven had been withdrawn. Therefore, throughout Chinese history, times of poverty and natural disasters were often taken as signs that heaven considered the incumbent ruler unjust and thus in need of replacement.

Based on the theory of Mandate of Heaven, if South Sudanese were Chinese today, they would have concluded that the problems facing them were due to the fault of leadership and there was a need for him to be replaced. This theory and others were developed to explain one thing: the duty of the government to protect citizens is the most basic duty of a government and if the government fails to protect citizens, then the citizens have the right to remove the leader.

It goes to say that the primary duty of the government is to protect lives, which implies that the government has to protect citizens from each other by organizing police to enforce the law. It further implies that the government has a duty to protect citizens by defending the country from outside forces. As it has been noted by some writers, it is because of this duty most governments are in charge of creating and commanding a military that can repel invasions or even fight for the country’s interests abroad. The duty of the government of South Sudan is the protection of life and to ensure the safety of its citizens. 

The origin of the duty of the government to protect has its basis in the fact that the citizens need protection so that the law and order prevails. The duty of the government to citizens mean the duty to protect, promote and implement all human rights, and more precisely to ensure that all persons under its jurisdiction are able to enjoy all social, economic, political and other rights and freedoms in practice. It therefore implies that in every decision, the State has to take into account human rights and act to make these rights a reality for all. 

For example, the State should take all the necessary measures to establish social, economic or judicial guarantees that respect human rights and ensure that these measures are properly implemented.  Where the a person or persons are a victim of human rights violations, the government has a duty to provide an effective remedy for such persons who claim to have been victims of a human rights violation and to conduct prompt and impartial investigations of alleged human rights violations.

At the same time the state has a duty to receive all complaints submitted by human rights defenders. Upon receiving the complaints, it must ensure that a prompt and impartial investigation is conducted or that an investigation procedure will be put in place whenever there is a suspicion of violation of human rights or fundamental freedoms. The State duty further entails that it has to take all necessary measures to ensure the protection of everyone against any violence, threat, retaliation, discrimination, pressure or any other arbitrary action of his or her legitimate exercise of the right referred to in the Declaration 

In relation the above, it means that States have the obligation to provide effective and tailored protection to all citizens and others who are under its jurisdiction. As part of the duty of the state it has a duty to promote and facilitate human rights education at all levels of formal education and professional training. States must ensure that every person is in the possibility to receive human rights education.

It implies that human rights concept must be enshrined in all policies of the state and make sure that it is part of formal education system so that professional groups such as lawyers, judges, police officers are trained in human rights concept. If these professional groups understand human rights, human rights can be protected in the country.

Coming to the question as to what does the state responsibility constitute in the context of South Sudan in the existing communal violence, it is important to note that the duties discussed above all apply to the government of South Sudan. The government of South Sudan has a duty to protect citizens or all people of South Sudan.

The above duty of the government of South Sudan means that the Government of South Sudan must maintain law and order; it must protect lives and properties of citizens; it must promote democracy, justice and social justice; it must ensure the provision of social welfare services; it must ensure the promotion of economic development; above all, it must ensure the protection of human rights; it must also maintain external relations; and must provide employment opportunities to the citizens.

The above duties of the government are also enshrined in the Bill of Rights Transitional Constitution of the Republic of South Sudan 2011, which provides that the Bill of Rights is a covenant among the people of South Sudan and between them and their government at every level and a commitment to respect and promote human rights and fundamental freedoms enshrined in this Constitution; it is the cornerstone of social justice, equality and democracy.

The Constitution further provides that the government shall uphold the Bill of Rights, protect and apply by the Supreme Court and other competent courts; the Human Rights Commission shall monitor its application in accordance with this Constitution and the law.

The duties provided in the Bill of Rights above means that the Government of South Sudan may be liable if it fails to perform her duties. The state therefore has the duty to protect citizens against communal violence. This includes the Government imposing death penalty where there is a state of anarchy.

In the case of South Sudan, the government has to do something to control the killings going on, on the ground. The government must impose the death penalty so that those educated individuals fear to kill before their rights are respected.

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