The Criminal Courts of South Sudan Perpetrate Injustice More Than the Customary Law Courts;
By J.A Ogeno, Esq.
Sept 15, 2014(Nyamilepedia) — Criminal Courts are Courts with jurisdiction over criminal matters. South Sudan’s Criminal Courts are listed under Article 123 of the Transitional Constitution, 2011and Section 9 of the Code of Criminal Procedure Act, 2008. The Courts are the Supreme Court, Courts of Appeal, High Courts, County Courts and other Courts deemed necessary. These Courts are presided over by Justices (Supreme Court & Courts of Appeal), Judges (High Courts) and Magistrates (County Courts). The Criminal Courts have different powers and competence as provided under Articles 126, 129 – 131 of the Transitional Constitution, 2011 and Sections 10 – 15 of the Code of Criminal Procedure Act, 2008.
Customary Law Courts on the other hand, are Courts that handle customary disputes in accordance with the customs, traditions, norms and ethics of a particular community. Customary Law Courts are established under Section 97 of the Local Government Act, 2009. The Courts are structured as“C” Courts with powers and competence under Section 99(7), “B” Courts or Regional Courts with powers and competence provided under Section 100(4), “A” Courts or Executive Chief’s Courts with Jurisdiction stated in Section 101(2) and Town Bench Courts with jurisdiction stated under Section 102(3) of the Local Government Act, 2009. Customary Law Courts are presided over by Traditional Authority leaders.
The critiques of Customary Law Courts will agree with the assertions against the same as being featured by the provision of unequal protection, inconsistency in decision making, no standard of proof and application of rules of evidence during dispute resolution, imposition of corporal punishment and many other assertions that brand Customary Law Courts as perpetrators of injustice. I harbors the opinion that the branding of Customary Law Courts as mockers of justice and rule of law by the above stipulations gave the guidance for the provision of Section 99(2) of the Local Government Act, 2009 which bars Customary Law Courts from having competence to adjudicate over criminal matters save for those criminal cases with customary interface referred to the Court(s) by a competent Statutory Court(s).
The above provision of the Local Government Act can spark “joyous hope” in that if anyone is charged or indicted of any criminal act/offence, he or she will be tried by a just Court unless referral is made to the Customary Law Court(s).
Criminal Courts as the most fundamental component of a Criminal Justice System can be made faces of justice or injustice by the Adjudicators. The public’s expectation is that unlike the Adjudicators of the Customary Law Courts, those of the Criminal Courts are highly Competent and knowledgeable Personnel with thorough understanding of the law and capable of properly applying the law to solve a given criminal case.
The author’s herein stated observations and true encounters /experiences with the S. Sudan’s Criminal Courts reveal that the Criminal Courts of South Sudan perpetrate injustice more than the Customary Law Courts.
- Pre-trial Violations and Criminal Case Files;
Notwithstanding the fact that South Sudan lacks the direction of a clear Legal System, as a matter of good practice or law, before the commencement of a criminal trial, the Trial Court’s consequential duty is to bear in mind that the accused person appearing before the Court might have suffered grave violations during pre-trial proceedings and it’s the Court to remedy these if necessary. Before Trial the Court must also verify if the Criminal Case File is proper. A proper Criminal Case File will include; framed charge/indictment, Summary of the Case (for cases before the High Courts), Complainant’s Statement, Witnesses’ Statements, Statement of the Arresting Police Officer, Statement of the Investigator, the Accused’s Statement and other essential reports.
Most of the accused persons I ever represented suffered pre-trial violations such as unlawful arrest, pro-longed detention, unlawful Searches& Seizures, fabricated charges andCriminal Case Files containing only the Statements of the Investigator and Accused are sanctioned for trial. The Courts do not get concerned to address these irregularities thereby failing in their duty as pillars of justice and encouraging perpetual perpetration of the same violations. The danger of accepting a Case File that lacks the Statements of the relevant Prosecution’s witnesses is that the accused will be placed at risk of being convicted on fabricated testimonies of coached witnesses whose statements were not previously recorded during investigations.
So long as South Sudan’s Criminal Courts continue to get less concerned about pre-trial violations and accepting scanty criminal case files, the Courts will remain Pillars of injustice more than the Customary Law Courts.
- Presumption of Innocence and Procedural Regularities;
Article 19(1) of the Transitional Constitution, 2011 and Section 6(b) of the Code of Criminal Procedure Act, 2008 guaranteed that every accused person is presumed innocent until his/her guilt is proved beyond reasonable doubt.
The notion of presumption of innocence demands that the accused must not be treated as if he/she was guilty once suspected or charged of any offence. The notion protects fundamental liberty and human dignity of every person accused by the State of criminal conduct and it confirms our faith in humankind, it reflects our belief that individuals are decent and law abiding members of the community until proved otherwise.
Some of the South Sudan’s Criminal Courts inversely treat this notion as rightly described by one of my learned friends in the following words;
“Practically in South Sudan, an accused person is presumed guilty until his/her innocence is proved beyond reasonable doubt and you won’t understand this mask of injustice unless you have the experience of defending an accused person as an Advocate”, Said, Lejukole Noel Marle, an Advocate of Courts of Judicature of S. Sudan (during a collegial conversation from Juba Main court on Sept. 02nd, 2014).
I encountered the utmost disregard to the above notion in one of the criminal cases I appeared for as a Defence Lawyer/Attorney. In the case the Trial Court convicted my client at the ruling of a prima facie case and asked my client to enter a plea.
“I Judge ………. of ………found that there is strong evidence presented against you (the accused person) proving beyond reasonable doubt that you committed the offence charged, therefore I found you guilty under Section …….of the Penal Code Act, 2008, how to do you plead, guilty or not guilty?”, said the learned trial Judge in the prima facie case ruling.
For this grave injustice and irregularity, the immediate remedy I could offer was to shout at the top of my voice and called the Adjudicator “a disgrace to the legal profession” which nearly got me in jail for contempt of Court. Where a Court can do this to a client represented by an Advocate, how much injustice do you think the accused persons with no legal representation suffer and how many prisoners are unjustly sent to the prison(s) by this same Court?
- Identification of elements/ingredients of offence
The established principle of Criminal Law is that the Prosecution must prove all the elements the offence charged beyond reasonable doubt. This means that a Court must satisfy itself that indeed all the elements of the offence charge are proved beyond reasonable doubt and this requires correct identification of the elements of the offence. To identify elements/ingredients of an offence, one must look at the Section of the Act/Legislation/Law creating the offence.
In a criminal case of theft under Section 293(1) of the Penal Code Act, 2008, a learned Magistrate in defining the elements of theft confidently stated in a decision that under the above Section, there are only two elements of theft which are I) physical element and, II) Permanent element.
This was my professional horror that made me to think that if the learned Magistrate was right then my understanding of the law is either rudimentary or obsolete. To ease my fears I asked a second year law student of the University of Juba to outline the elements of theft provided under above Section. The said Section provides that;
“Whoever, intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property in order to effect such taking, and whoever dishonestly diverts, consumes or uses any electricity, electric current or tap water, commit the offence of theft, and upon conviction, shall be sentenced to imprisonment for a term not exceeding five years or with a fine or with both”.
Really notwithstanding the poor legislative drafting of the above Section, the Student correctly noted that the elements of theft as stated in the Section are; (i) There must be a movable property (ii) The property must be proved to be in possession of some person (iii) dishonest taking/asportation (iv) dishonest intention (v) The accused must be proved to have taken the property and (vi) lack of consent must be proved.
Failure to correctly identify the elements/ingredients of an offence charged will misdirect the Court to apply immaterial evidence to reach a wrong decision.
- Knowledge of the law of evidence
Without the knowledge, understanding and correct application of the law of evidence, Courts are bound to arrive at decisions which do not conform to the rules of evidence.
In South Sudan, the rules of evidence are codified in the Code of Evidence Act, 2006, but these rules appear to be less understood and applied by most Adjudicators of the South Sudan’s Criminal Courts during Criminal Proceedings. One of the rampant misunderstood rules which I often encounter in criminal trials is the rule relating to Competence of Witnesses. The Trial Courts I ever appeared before to represent several criminal trials, in total disregard to the provisions of above stated law do not permit accused persons, females or Lawyers to appear as witnesses even if they are key witnesses in the case.
Section 125 (1) of the Act is to the effect that all persons shall be competent to testify unless the Court considers that they prevented from understanding the questions put to them or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind or any similar cause.
Even if the considerations for exempting accused persons, females or Lawyers from testifying in Courts do not exist as envisaged above, an Advocate can hardly convince the Criminal Courts that all Persons are competent witnesses.
Section 128 (2) of the Act also guarantees that in criminal proceedings every person charge with an offence shall be a competent witness for the defence at every stage of the proceedings. This can be upon the motion or application of the person charged to be a witness as stated under subsection 3 of the stated Section.
Where these clear provisions are not permitted their effects by most of the Adjudicators of the South Sudan Criminal Courts, one can be persuaded to agree that the rules for admissibility of evidence has less relevance in informing the decisions of the Criminal Courts of South Sudan. This means that most of the prisoners across the detention facilities of South Sudan are victims of wrong decisions which did not conform to the rules of evidence.
- Knowledge of evaluation of evidence
Bearing in mind the presumption of innocence and the burden and standard of proof in a criminal case, the law relating to evaluation of evidence is to the effect that to reach at a verdict, Court must base its decision on all versions of the evidence presented before it. It is a misdirection to accept the one version and then hold that because of that acceptance per se, the other version is unsustainable.
As noted above that the notion of presumption of innocence is treated inversely, there is inadequate knowledge of identifying elements of offence and inadequate knowledge of the law of evidence then it follows that the above established principle on evaluation of evidence less applied by some of the Criminal Trial Courts of South Sudan. The effect of such is perpetration of injustice depending on which side of the evidence the Court will want to base its ruling or judgment on.
- Application of Common Sense than the Law;
“In South Sudan, the surest way of leading your client (accused person) to a conviction is by relying on what the law says because the Courts of South Sudan apply common sense not the law”, Said, a Senior Advocate & Lecturer of the University of Juba (on the 09th day of May, 2014 after a Criminal Court Session where the Author appears as a Co-Counsel of the Senior Advocate).
Unlike in other common law jurisdictions where Judges are assisted by assessors, in South Sudan the Judge is both the trier of facts and law and unlike the Customary Law Courts that apply customary law to resolve disputes, the Criminal Courts of South Sudan rely on facts and application of common sense to resolve criminal matters ignoring the law. This can be proved through their judgments where you can hardly find any reference to the law or precedent.
- Indefinite imprisonment for failure to pay Compensation;
Article 122 (5) (c) of the Transitional Constitution, 2011 and Section 6 (g) of the Code of Criminal Procedure Act, 2008 provide that adequate compensation shall be awarded to victims of offences.
Hundreds of prisoners languishing in the Prisons in South Sudan are victims of the above provision. The law gives power to award compensation but does not provide for the mechanism of recovering such compensation and the period of imprisonment for failure to pay the compensation after the prisoner has completed serving his/her imprisonment sentence. The recurring mistake that puts the Criminal Courts at the Apex of injustice perpetrators is; sentencing a convict for a period of imprisonment and at the same time ordering the convict/prisoner to be imprisoned until payment of awarded compensation is done. This means that even if the prisoner has served the defined imprisonment sentence, he/she will continue to be in jail indefinitely until payment of the compensation is made.
In unlawful move to create the mechanism for recovering such awarded compensation, the Criminal Courts do state in their decisions that the compensation should be recovered in accordance with Civil Procedure Act, 2007. Notwithstanding this unlawfulness, if this is the Courts’ position, then the Section 236 (1) of the Civil Procedure Act must be respected. The Said Section of the Act provides that ‘where a judgment debtor is committed to prison in execution of a decree, the order of commitment shall state the period of detention or shall state that he/she is to be detained until the decree is satisfied; provided that, no person shall be so detained for a period exceeding six weeks if the decree is for the payment of SP50 or its equivalent and for a period not exceeding six months in any other case’.
A Judge while agreeing with my observation describes such injustice in the following words which I have nothing useful to add to;
“Imprisoning a prisoner for indefinite period of imprisonment for failure to pay awarded compensation is a transgression of the law that yields irreparable injustice to the victims of such decision”, Said a High Court Judge with Power of a Justice of Court of Appeal (In response to the Author’s query about such unlawful decision from Juba Main Court on October, 25th, 2014).
- Criminal Appeals;
An Appeal is a creature of statute. The right is provide under Articles 129 (2), 130 (2), 131 (2) of the Transitional Constitution, 2011 and Section 263 of the Code of Criminal Procedure Act, 2008. An Appeal must be within 15 days after pronouncement of a sentence. The Appellate Courts are; High Courts (hear appeals from decisions of County Courts), Courts of Appeal (hear appeals from decisions of High Courts) and the Supreme Court (hear appeals from the decisions of Courts of Appeal).
From the above beautiful structures of the appellate Courts and perusal of this piece of writing, many may be tempted to say that the author of this work may be a lazy Counsel because if his client is unjustly convicted and the client has a right of appeal, then why doesn’t he make appeals to the appellate Courts?
To erase that temptation, beautiful as the structures of the appellate Courts may appear, practically these Courts are less functional, Appeals are not determined in open Courts to create public confidence in the Courts, and sometimes the outcome of the appeals are after the appellants have completed serving their imprisonment sentence. Imagine that the result of the appeal is in favor of an appellant who has already completed serving his/her three (3) years of imprisonment, would you be shy to agree that this is a perpetration of injustice?
Efforts should be made to eliminate or minimize the current impediments witnessed in the S. Sudan’s Criminal Courts. Failure to do so would mean that the Government should be prepared to build more detention facilities/prisons to accommodate more prisoners who will be victims of unjust decisions since everyone is a potential candidate for a criminal conduct. Recommendations can be viewed at my next piece of work titled “The Criminal Courts of South Sudan need Fundamental Reforms”.
The author is an Advocate of the Courts of Judicature of South Sudan and a Member of the Ugandan Bar and can be reached at firstname.lastname@example.org