Understanding Federalism: Proposed Federal system for future South Sudan,
Let us serialize it
Bill of rights part 2
By Sindani Sebit, Nairobi.
August 5, 2014(Nyamilepedia) — Part 7 of these series completes the bill of rights. It focuses on crucial areas of basic freedoms and the proposed Federal Republic of South Sudan Human Rights Commission (FRSSHURC).
Freedom of the media
The federal South Sudan recognizes the importance of media in educating the masses, advocacy, informing and contributing to exercise of democracy in a country. In order to allow the media play these vital facets of the society, the electronic, print and all other types of media shall be guaranteed freedom and independence. On the other hand the federal government shall not be allowed to exercise control over or interfere with any person engaged in broadcasting, the production or circulation of any publication or the dissemination of information by any medium; or freedom of expression. It shall not impose any penalty on any person for any opinion or view or the content of any broadcast, publication or dissemination.
The right to establish broadcasting and other electronic media shall be protected and promoted subject only to licensing procedures. These procedures are only necessary to regulate the airwaves and other forms of signal distribution. They will also be independent of control by government, political interests or commercial interests.
All Federal or state-owned media shall be free to:
- Determine independently the editorial content of their broadcasts or other communications;
- Be impartial; and
- Afford fair opportunity for the presentation of divergent views and dissenting opinions.
Federal Parliament shall enact legislation that provides for the establishment of a body that will coordinate licensing procedures of the media services. This body shall:
- Be independent of control by government, political interests or commercial interests;
- Reflect the interests of all sections of the society
- Set media standards and regulate and monitor compliance with those standards.
Access to information
In order to ensure that the citizen have access to information and are correctly informed, Federal South Sudan shall ensure that every citizen has the right of access to the following information:
- Federal and state information
- Information in custody of any person but required for exercise or protection of any right or fundamental freedom
In addition, the right to correct and delete untrue or misleading information shall be assured so as to avoid anybody be affected by such information. In order to ensure that the citizenry receive correct and reliable information on time, the federal authorities at whatever level of government shall be required to publish and publicize any important information affecting the country.
Freedom of association, assembly, demonstration, picketing and petition
These are basic freedoms that underline the true tenets of democracy so that the citizen can participate openly in the affairs of the country, demand and fight for their rights in addition to ensuring that they are listen to, heard and responded to appropriately. Therefore federal South Sudan shall guarantee every person the right to freedom of association. This includes the right to form or participate in the activities of an association of any kind. This means no person shall be compelled to join an association of any kind.
Registration of associations shall be provided in a law that guarantees that registration may not be withheld or withdrawn unreasonably and that there shall be a right to have a fair hearing before a registration is cancelled. The right to peaceful and unarmed assembly, demonstration picketing and to present petitions to public authorities shall be provided by law.
Federal South Sudan shall be a multiparty and plural democratic country. This means the rights to form and participate in a political party must be granted to the citizens to exercise freely. Therefore the every citizen shall be granted the freedom to make political choices. These choices include:
- Formation and participation in forming a political party which
- Participation in the activities of, or recruitment of members for, a political party; or
- Campaigning for a political party or cause.
In addition, every citizen shall be guaranteed free, fair and regular elections based on universal suffrage and the free expression of the will of the electors for any elective public body or office established under the federal and state constitutions and any office of any political party of which the citizen is a member. This means that every adult citizen has the right, without unreasonable restriction to be registered as a voter, vote by secret ballot in any election or referendum; and to be a candidate for public office, or office within a political party of which the citizen is a member and, if elected, to hold office.
Access to Justice and rights of arrested person
Access to fair justices in South Sudan has become a thing of the past. People are arrested and tried without representation by advocate. Detention camps are everywhere in Juba where people are incarcerated for days or even months without being brought before court of law. Wanton killings, torture and intimidation are going on unabated perpetuated by the powers that be in Juba. These are ills that federal constitution must set out to eliminate in the country. In order to bring order, sanity, proper and prompt access to justice in South Sudan, the constitution shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice.
It shall be stipulated that an arrested person has the right to be informed promptly, in language that the person understands, of the:
- Reason for the arrest
- Right to remain silent
- Consequences of not remaining silent;
- Communicate with an advocate, and other persons whose assistance is necessary;
The arrested person shall not to be compelled to make any confession or admission that could be used in evidence against the person. He/she should be held separately from persons, who are serving a sentence and should be brought before a court as soon as reasonably possible but not later than:
- Twenty-four hours after being arrested; or
- If the twenty-four hours ends outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day;
The person should be charged or informed of the reason for the detention continuing, or to be released at first court appearance and to be released on bond or bail, on reasonable conditions pending a charge or trial, unless there are compelling reasons. No person shall be remanded in custody for an offence if the offence is punishable by a fine only or by imprisonment for not more than a period that shall be stipulated in constitution.
Any dispute that necessitates court hearing should be subjected to fair hearing in a competent court of law. However, in today’s South Sudan this is unheard of. Courts in South Sudan have become instruments of oppression and subjugation. This is because they are not longer independent but subjected to the powers of the executive to maintain them in power and to continue to abuse the rights of the citizen. However, this pathetic state of affairs will become obsolete in a federal South Sudan. The federal South Sudan strives to ensure that every person shall have the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. Every accused person shall have the right to a fair trial. This includes the right to:
- Be presumed innocent until the contrary is proved;
- Be informed of the charge, with sufficient detail to answer it
- Have adequate time and facilities to prepare a defense
- A public trial before a court established under the federal constitution
- Have the trial begin and conclude without unreasonable delay
- Be present when being tried, unless the conduct of the accused person makes it impossible for the trial to proceed
- Choose, and be represented by an advocate, and to be informed of this right promptly;
- Have an advocate assigned to the accused person by the federal or state government whichever applies and at expense of these authorities, if substantial injustice would otherwise result, and to be informed of this right promptly
- Remain silent, and not to testify during the proceedings;
- Be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence;
- Adduce and challenge evidence;
- Refuse to give self-incriminating evidence
- Have the assistance of an interpreter without payment if the accused person cannot understand the language used at the trial
Any person shall not to be convicted for an act or omission that at the time it was committed or omitted was not an offence in the country or a crime under international law. No one shall be tried for an offence in respect of an act or omission for which the accused person has previously been either acquitted or convicted. However the accused shall be informed of the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the times that the offence was committed and the time of sentencing
If anyone is convicted, he/she shall be informed of the right to appeal to, or apply for review by a higher court as prescribed by law. If this requires information to be given to a person, the information shall be given in language that the person understands.
Any evidence adduced in a manner that violates any right or fundamental freedom in the bill of rights shall be excluded because if this evidence is admissible it would render the trial unfair, or would otherwise be detrimental to the administration of justice.
An accused person charged with an offence, other than an offence that the court may try by summary procedures, is entitled during the trial to a copy of the record of the previous proceedings of the trial. Such a person shall have the right to a copy of the record of the proceedings within a reasonable period after they are concluded.
A person who is convicted of a criminal offence may petition the High Court in the state for a new trial. if the person’s appeal, if any, has been dismissed by the highest court to which the person is entitled to appeal, or if the person did not appeal within the time allowed for appeal and new and compelling evidence has become available, then in the interest of justice, a court may allow an intermediary to assist a complainant or an accused person to communicate with the court.
Rights of persons detained, held in custody or imprisoned
For the purpose of justice and to ensure that these people are treated according to the law, a person who is detained, held in custody or imprisoned, retains all the rights and fundamental freedoms in the bill of Rights unless this right or a fundamental freedom is clearly incompatible with the rights and fundamental freedoms accorded to such people. A person who is detained or held in custody shall also be entitled to petition for an order of habeas corpus. These people shall be treated in humane way in accordance to relevant international human rights instruments.
Specific Application of Rights
The aim of this part is to elaborate certain rights that are inherent to certain groups of persons. The groups include children, persons with disabilities, youth, minorities, marginalized and any other members of the society. It should not be construed as limiting or qualifying any right.
Children: Every child has the right to a name and nationality. He/she has right to free and compulsory basic education, basic nutrition, shelter and health care. Any child shall be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, and hazardous or exploitative labour. A child is entitled to parental care and protection that includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not. A child shall not to be detained, except as a measure of last resort, and when detained, shall be for the shortest time possible and must be separated from adults and in conditions that take account of the child’s sex and age. All these are aimed protecting and preserving the child’s best interest.
Persons with disabilities
A person with any disability shall be entitled to:
- Be treated with dignity and respect and to be addressed and referred to in a manner that is not demeaning
- Access educational institutions and facilities for persons with disabilities that are integrated into society to the extent compatible with the interests of the person;
- Reasonable access to all places, public transport and information;
- Use Sign language, Braille or other appropriate means of communication
- Access materials and devices to overcome constraints arising from the person’s disability.
In order for the youth to effectively access the following services, the federal authorities shall take measures including affirmative action programs:
- Access relevant education and training
- Have opportunities to associate, be represented and participate in political, social, economic and other spheres of life
- Access employment
- Protection from harmful cultural practices and exploitation.
Minorities and marginalized groups
The federal authorities shall formulate appropriate affirmative action programs aimed at ensuring that minorities and marginalized groups:
- Participate and are represented in governance and other spheres of life;
- Are provided special opportunities in educational and economic fields
- Are provided special opportunities for access to employment
- Develop their cultural values, languages and practices
- Have reasonable access to water, health services and infrastructure
Other members of society
This is mainly for the elderly members of the society. In this case the federal authorities shall develop effective measures to ensure the rights of older persons to fully participate in the affairs of society, pursue their personal development, live in dignity and respect and be free from abuse and receive reasonable care and assistance from their family and federal authorities. This is to ensure that these useful members of society can easily circum to condition associated with neglect and disuse.
Federal Republic of South Sudan Human Right Commission (FRSSHURC)
The main objectives of establishing a human rights commission are to protect the sovereignty of the people, ensure that all federal and state organs observe democratic values and principles of the country and to promote constitutionalism.
Establishment of FRSSHURC
The human right commission shall be an independent body incorporated with perpetual succession and a seal capable of suing and be sued in its corporate name. Members of the commission shall be subject only to the Federal constitution and law. They shall be independent and not subject to direction or control by any person or authority. The budget of each commission shall be a separate vote allocated by Federal Parliament. The aim here is to ensure that the commission is not subjected to the executive, parliament or judiciary when performing its functions and responsibilities. In addition this commission will have powers to summon witnesses to aid in any investigation the commission is involved in.
Functions and responsibilities
The Federal Republic of South Sudan Human Right Commission shall be the principal organ of the state in ensuring compliance with obligations under treaties and conventions, relevant to human rights and in so doing shall perform the following functions and responsibilities
- Promote respect for human rights
- Develop culture of human right observance in the Federal Republic of South Sudan
- Promote gender equality and equity generally
- Coordinate and facilitate gender mainstreaming in national development
- Promote protection and observance of human rights in public and private institutions
- Monitor, investigate and report on the observance of human rights in all sphere of life including observance of the security organs
- Receive and investigate complaints about alleged abuses of human rights and take steps to secure appropriate redress where human rights have been abused
- Initiate or following complaints, investigate or research matters related to human rights and recommend improvement in the functioning of state organs
- Investigate any conduct in the state affairs or any act or omissions in public administration that is alleged or suspected to be prejudicial or improper or to result in any impropriety or prejudice
- Investigate complaints of abuse of power, unfair treatment, manifest of injustice or unlawful, oppressive, unfair or unresponsive official conduct
- Report complaints investigated and take remedial action
- Perform any other functions prescribed by law
The functions and responsibilities of the commission shall be reinforced by Federal Parliament legislation giving full powers that every person has the rights to complain to the commission when his/her rights or fundamental freedoms are denied, violated, infringed or threatened.
Transparency of the commission
The FRSSHURC shall exercise prudency and transparency in its operations and in so doing shall submit a report to the President/Prime Minister and Federal Parliament at the end of each financial year outlining clearly its activities and financial returns. Alternatively the President/Prime Minister or the Federal Parliament may require a commission to a report on particular subject at any time and any report submitted to the President/Prime minister or Federal Parliament by a commission shall be officially published. This is to enable the entire country become conversant with the content of the report as well as to follow up on its implementation if such need arises.
Composition of commission
The FRSSHURC shall have at least 5 to 9 members. The members of the commission including their chairperson shall be identified, vetted and recommended for appointment by the Federal Parliament according to an act of Federal Parliament stipulated for such nominations. Once the nominee or nominees are approved by Federal Parliament, the President/Prime Minister shall proceed to appoint them. These appointments shall take into consideration national Values, principles of particular commission and must reflect regional balance and ethnic diversity. The tenure of the commission shall be guided by the following:
- Tenure of the members of the commission shall either be part time, for one term of 5 years and cannot be reappointed
- Member of this commission shall not hold any other employment office for profit whether public or private
- Remuneration of the members of the commissions shall be paid from the consolidated funds and such remunerations shall not be varied to the disadvantage of the members of the commissions
- A member of the commission shall not be liable for anything done in good faith in the performance of the function of the office
- The commission shall have a vice chairperson elected by the members at their first sitting
- The chairperson and the vice chairperson of the commission shall not be of the same gender
- The commission shall have a secretary appointed by the commission and will be the chief executive officer of the commission
Removal of members of the commissions
The members of this commission shall only be removed because of serious violation of the federal constitution or law, gross misconduct, physical or mental incapacity to perform the functions of the office, incompetence or bankruptcy.
Any person seeking removal of a member of this commission must follow the below procedures:
- Present a petition to the federal Parliament outlining clearly the alleged grounds for the call for removal of the commissioner
- Having received the petition, the Federal Parliament present the petition to the President/Prime Minister
- The President/Prime Minister shall suspend the member concern and set up a tribunal to investigate the member according to an act of Federal Parliament stipulated for such procedures. However, a person suspended under such circumstance should continue to receive half of his/her remuneration and benefits, until the case is finalized.
- Once such person is found guilty, he/she shall be dismissed by the President/Prime Minster but if found not guilty, he/she shall be reinstated with its full benefits.
These strict procedures are basically aimed at protecting the members of the commission from being manipulated, harassed or intimidated. They must be assured of their job so as to fulfill their mandate without fear.
In conclusion, the bill of rights shall be protected by an independent commission that shall be prudent and transparent. This commission shall have the instruments of power to exercise its full sovereignty so that the people of South Sudan shall enjoy the rights and fundamental freedoms for the prosperity and posterity of the country.
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