Opinion: ‘Juba four’ trial inherently flawed
By J4J4 Campaign -GENEVAThe remaining four political detainees, Ezekiel Lol Gatkuoth, Majak D’Agoot, Pagan Amum and Oyay Deng Ajak, guarded in the courtroom in Juba(Photo Credits: Arek Majak, 2014)
March 16, 2014(Nyamilepedia) — Four political opponents of President Salva Kiir of the newly independent South Sudan, within the ruling political party (SPLM) chaired by the President, remain unlawfully imprisoned, absent due process and in contravention of international law, since 17 December last year.
These are the Juba Four: Pagan Amum (former Secretary General of the SPLM), Majak D’Agoot (former Deputy Minister of Defence), Oyay Deng Ajak (former Minister for National Security and Chief of General staff of the SPLM), Ezekiel Lol Gatkuoth (former SPLM representative to the USA).
The Juba Four’s only action was to carry out their democratic and governmental duty and speak out against the policies of their government that, during a time of political and social crisis, they believed were not in the best interests of their people. For this, they have been accused of treason, detained without charge for over two months, investigated by a government led Special Investigative Committee (SIC) and now appear before a Special Court where they face the death penalty.
To place this in context, President Kiir recently announced that the United Nations wanted to overthrow him. The Government this week continued to accuse the United Nations of involvement in a coup attempt against the current leadership.
It was not until the 5th of March that the Juba Four were told they would be appearing yesterday before a Special Court, which appears to have been convened in contravention of the law of South Sudan. It is not clear which government official or department’s order established the SIC that investigated the four or whether it was ever granted the power it has used to indict them and bring them before the Special Court. The case should have been presented to the President of the Supreme Court for him to determine whether it should be tried by way of Special Court. Instead, it appears that the SIC and the Special Court were constituted by order of the President/Minister of Justice. The first time the judiciary were presented with and allowed to consider the validity of the case was on the first day of the trial.
Further, no charges had been formally presented to the Four before the trial opened. The first time they learned of the full accusations against them was on the day of the trial. Nor have they received copies of any evidence that the prosecution intends to bring, for example the tape recordings that the prosecution referred to on the first day of trial. Also on the first day, the prosecution indicated that it would be calling 13 witnesses to testify against the accused. However, the prosecution has not disclosed the identity of the 13 witnesses to the Four. For these reasons, the Four have not been able and are in no position to prepare an effective defence, in violation of international standards. This may also be in breach of the fair trial and personal liberty guarantees in the Transitional Constitution of South Sudan.
Many commentators believe that the trial is politically motived and that its purpose is to enable those in power to prevent their political opponents from standing in the forthcoming elections, relying on the constitutional provision barring convicted criminals from running for office. If so, this trial is an abuse of process and the people of South Sudan cannot allow it to continue or succeed in its objectives.
The Juba Four should either be released immediately or allowed to face justice before a properly constituted, independent tribunal grounded in due process and with, given the political nature of the trial, objective and independent international standards/oversight.
The political motivation for, the nature of, and the way in which the “Special Court” was convened was un-constitutional and, from the start, these proceedings have lacked due process in accordance with international human rights standards.
Both the convening of the Special Court and the treatment of the four detainees offend the very democratic and just foundations on which South Sudan was founded.
As such the Special Court forum is inherently flawed. This cannot be made better or fairer by honourable judges and lawyers trying to make the best of a bad situation, as if placing a Band-Aid on a deep wound. The Special Court trial must end now before it further damages the international reputation of South Sudan. The demonstrable innocence of the Juba 4 calls for their immediate release. Otherwise, only a newly established independent tribunal with international standards and oversight is the only proper way to ensure that justice is done and independently demonstrate the innocence of the Juba 4.
Moreover, the political case against them should not be allowed to distract from the need to seek justice for the victims of the recent atrocities. Such an independent tribunal (with international standards and involvement) should be immediately developed to ensure there is accountability, in fact and law, for the victims of the unlawful killings of thousands since December last year.
We call on all sides, joined by the four detainees, to immediately sit round a table, commence dialogue for peace, and work with the international community to agree on an independent forum for delivering justice for the thousands of victims.
Furthermore, the J4J4 Campaign, created to support justice for the Juba Four:
1. Calls on the Government of South Sudan to abide by Articles 12 and 19 of its Constitution that guarantee the right to personal liberty and fair trial, especially Art. 12 and Art.19 § (2), (3) and (5), which state:
– “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.
– 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.
– In all civil and criminal proceedings, every person shall be entitled to a fair and public hearing by a competent court of law in accordance with procedures prescribed by law.
– Any accused person has the right to defend himself or herself in person or through a lawyer of his or her own choice or to have legal aid assigned to him or her by the government where he or she cannot afford a lawyer to defend him or her in any serious offence.”
2. Calls on the Government of South Sudan to
a. immediately release the Juba Four without charge; or
b. immediately release on the agreement that it shall work with the international community to establish a fair and independent tribunal system (with international monitoring) by which they, if need be and a case to answer is presented, may later be tried (should indeed an independent forum be required to demonstrate their innocence); and
c. moreover, agree to work with the campaign and the international community to establish an independent and international standard tribunal to consider and administer justice against all those who were actually responsible, from all sides, for the recent atrocities.
3. When the Juba 4 have been released, calls for all sides to immediately enter into reconciliation and peace dialogue.
4. Calls on the international community, human rights activists, NGOs and the media to join the campaign and foster 1,2 and 3 above.
5. Calls on the Government of South Sudan to ratify international and regional human rights treaties, including the African Charter on Human and People’s Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights to affirm its commitment to human rights and international legal standards of justice.
By ‘J4J4 Campaign,’ an initiative supported by the legal team of Pagan Amum, Majak d’Agoot, Oyai Deng, and Ezekiel Gatkuoth, and by McCue and Partners LLP in London.
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