Habeas Corpus is a pipe dream rather than verity in administration of Justice in South Sudan.

By Wicmuon Joseph Geng Chan

Wicmuon Joseph Geng Chan (Photo contesy of the author)

Wicmuon Joseph Geng Chan (Photo contesy of the author)

April 9th 2018 (Nyamilepedia) – The South Sudan Legal System (SSLS) is constructed on the composition of statutory and customary laws. In transitional era, South Sudan has been enacting dozens of laws in its legal system that seeks to redress the loopholes in administering justice in the country.

In this context, South Sudan’s parliament has been tirelessly putting more effort on the enactments of relevant laws that governs the jurisdictions of all institutions in relation to its citizens but despite of all these efforts, their use in legal disputes and courts is circumscribed.

The bill once passed by the parliament for approval and the president of the Republic of South Sudan assented to law such bill, it becomes an Act of parliament and the law of the land. So the ball will be in judiciary’s court to interpret such a statute according to its meaning but since some judges and lawyers in the judiciary have difficulties in understanding English, its interpretations becomes also difficult.

However, this has opened the way to the law enforcement agents to interpret the law according to what they want it to be not as prescribed by the law without their abusive, humiliated and untenable act on the innocent being condemned by judges and lawyers. If the judges and lawyers succumbed to the legal maxim that says “in the midst of arms, the law is silent” then the door will be unobstructed to those who want to do more crimes than expected in the country.

In this aspect of human suffering under the hands of law enforcement agent’s actions and intimidated judicial system, the common law writ, writ of habeas corpus should be applied to fundamentally safeguards the individuals’ rights being violated but has been inadequately applied by some legal fraternities that are providing legal aids to the people of South Sudan or those resides in the country.

Pertaining to the legal definition of habeas corpus, the Black’s Law Dictionary defined the habeas corpus as the process whereby a detained person’s attorney uses this writ to compel or force police to bring the person to court and challenge legality of detention. Professor of Law Donald E. Wilkes, Jr , University of Georgia, School of Law expanded this legal definition of habeas corpus as a court order commanding that an imprisoned person be personally produced in court and that an explanation be provided as to why that person is detained. Besides this, writ of habeas corpus provides a judicial remedy for enforcing a fundamental individual right, the right to personal liberty, which may be defined as the right to be free of physical restraint that is not justified by law.

In the general context, the authorities that are mandated by South Sudan Transitional Constitution 2011 to enforce laws as prescribed are contrary misusing those powers by detaining, torturing, enslaving and denying them other fundamental human rights that they should have enjoyed without encroachment. The arbitrary arrests, harasses, torture, cruel and other inhumane practices in South Sudan are indubitable. People have been suffering horrifically in the hands of those who would have assists the legal arm in fighting injustices.

Moreover, the intimidated judicial system in providing legal services failed to even hold any perpetrator (Law enforcement agent) accountable for infringements of people’s rights in contravention of local, regional and international laws that fundamentally safeguard these rights. Pursuant to Article 12 of South Sudan Transitional Constitution 2011 state that, 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. This provision sought the refuge of any action of individual (s) or authority (s) that may infringe this provision in an attempt to inflict intended harm or mistreatment on those under protection of the laws.

As a matter of fact, Article 19 (4) of the Constitution states that “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.  In addition to the aforementioned, Code of Criminal Procedure Act, 2008, Section 93(2), An arrested person shall be placed under the custody of the Police, and he or she shall not be transferred, or placed in any other place except upon the order or directives of the Public Prosecution Attorney, Magistrate or the Court as the case may be. Code of Criminal Procedure Act, 2008, Section 93(4) An arrested person shall have the right to inform his or her family, or the body to which he or she belongs, and contact the same. Where the arrested person is a juvenile, or suffering from a mental infirmity, or any disease, in such a way that he or she may not be able to contact his or her family, or the body to which he or she belongs, the police, Public Prosecution Attorney, Magistrate or the Court shall, on its own initiative notify the family or the appropriate body.

However, in a violation of the above stated provisions and sections, many remanded have never be informed as the law needs be instead further the days in custody without due legal processes. This proves to us that, the habeas corpus that the law enforcement agents should have followed, has just been placed as an afterthought and not in material effect at the eye of the law.

On the same purpose, African Charter on Human and Peoples Rights of 1986 affixed those rights that safeguard individuals from unlawful detentions and other rights that includes right to life, right to be informed for the reason of the arrest, fair trial, liberty and security of the person etc. Specifically, Articles 2, 3,4,5,6 7 and 8 of the African Charter on Human and Peoples’ Rights of 1986 these provisions need to be respected by enforcement agents and those that put into practice this law.

Furthermore, International Covenant on Civil and Political Rights (ICCPR) of 23rd March 1976, so far considered those rights stipulated in both South Sudan Transitional Constitution 2011 and the Code of Criminal Procedure Act, 2008 as fundamental rights worthy of preservation and respect of human dignity. Specifically, Article 7 of ICCPR stated that, No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Article 9 (1), (2), (3), and (4) respectively also circumvented the illicit acts that are contrary to the stated provisions.

Despite the fact that, the local, regional and international instruments have depicted explicitly all provisions that obviating those oppressors’ brutal act on the people, but no any single action have so far been taken to hold them accountable by the entities responsible for these malice intentions.

It is the judiciary’s mandate to deal with such matters that are full with legal knots by bringing to book those perpetrators whose actions continue to violate the constitutional provisions of human rights and block the appropriate justice and accountability to be done in favors of those the wrongs have been inflicted on them.

To redress these human rights flaws that have been frequently inflicting on South Sudanese by law enforcement agents and supported by the continued silent of the legal interpreters (judiciary branch of the government), the following recommendations should be considered.

First and foremost, the judiciary system should be independent and operational without political interference. This will lead to effective and efficient running of the institution in adjudicating the disputes that are arising in the country.

Secondly, to red-pencil the flaws hindering effective and efficient delivering of equal, equitable, impartial and transparent justice on the people, the politicians should be willingly circumvent political injustice that involves the violations of individuals liberties, denying of right to due process, infringements on rights to freedom of speech, opinion, inadequate protection from cruel and unusual punishment etc.

Thirdly, the legal aids’ Lawyers should be keen enough to regularly visit all police, national security service and military detentions including prisons to check out those detained or prisoned without access to court of law for their cases to be heard as enshrined in our constitution.

Fourthly, the human rights advocacies should engage all institutions in matters relating to the rule of law, democracy, leadership/governance and respect for human rights for preservation and respect of human dignity.

Fifthly, keeps conducting workshops and trainings to the law enforcements agents and other authorities relevant to this, to fully understand the laws governing human rights for example, South Sudan transitional Constitution 2011, Code of Criminal Procedure 2008, Universal Declaration of Human Rights 1948, International Covenant on Civil and Political Rights 1976, African Charter on Human and People’s Rights 1986 etc.

Sixthly, the Judicial Review Commission in collaboration with higher police authority (Inspector General of Police) or alternatively the minister of interior should establish a body that should overseas any police force personnel (s) and judiciary personnel (s) unlawful actions while carrying out their duties and responsibilities.

Seventhly, suspend, investigate and dismiss any law enforcement agent (s) whose actions are contrary to the laws of the country or regional and international laws and South Sudan Law Society in the country should also revoke the license (s) of the judge (s) or lawyer (s) who knowingly try to or attempt to breach the provisions of the laws while carrying out their mandated duties and responsibilities.

To be brief, there should be educational program that seeks to enhance the judges and lawyers’ capacity to reform and administer a country’s laws, regulations and how best to resolve the arising disputes in the country.

With the presumption that we are all created equal, equal before the law, any injustice meted on one South Sudanese is injustice meted on all South Sudanese.

 

The Author is a lawyer and can be reached via: josephwicmon.lawyer@gmail.com

 

 

 

 

 

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