Contributor's Daniel Juol



A South Sudanese youth being tortured by the SPLA at unknown location(Photo: file)
A South Sudanese youth being tortured by the SPLA at unknown location(Photo: file)

Dec 28th, 2017(Nyamilepedia) —— In the article that was published in the front page of Juba Monitor on Tuesday, December 05, 2017, entitled: DEATH PENALTY: To be abolished. In that Article the Minister of Justice and Constitutional Affairs, Hon. Paulino Wanawila Unango was reported to have revealed that the application of death penalty in South Sudan would soon be abolished and compensation shall be used as a means of solving disputes involving murder cases.

The reasons for the Minister wanted the death penalty abolished as were given by the reporter were: that it was not priority of the government of South Sudan to use death penalty; that death penalty was something that was not in the culture of South Sudanese; that though death penalty was to be abolished there would be other penalties.  The Minister as the reporter pointed out tried to justify his assertion on the abolition of death penalty on the ground that “in South Sudan, every case of legal dispute including causing death of somebody was being resolved through compensatory procedure “which should be maintained.

Finally, the Minister, however, pointed out that though the death penalty might not be abolished, it would still be subject to the consent of the relatives of the deceased. The reporter quoted the minister to have said that, where a person is unlawful killed the priority would be given to the relatives of the deceased to elect whether to go for compensation or death penalty. This in my opinion points to the fact that the Minister appears to move towards South Sudan privatizing the issues of crimes and criminal justice, which is a direct abrogation of the duty of South Sudan to keep the security of the country through criminal law.  

The reporter further reported that the Minister made his comment on death penalty after returning from Rome, having attended an international conference on the abolition of death penalty organized by St. Egidio. St. Egidio is an Organization concerns with the issue of death penalty application in the world. That conference is held yearly and it brings ministers of justice from different parts of the world to discuss why some countries are still applying death penalty.

This article therefore is intended a briefly respond to the Hon. Minister by saying that I totally disagree with him on all points he raises against death penalty due to the following reasons—

First of all, the Minister of Justice Hon. Paulino Wanawila Unango appears to have not understood the concept of justice itself. According to John Rawls in his work, Theory of Justice, and Justice Lloyds in his work, the Concept of Justice, justice is the first virtue of social institutions and subjective. This means that there is nothing like universal justice and since death penalty is a means of achieving justice the Minister should have understood that whereas death penalty might not be desired in other countries but in a country like South Sudan it will take hundreds of years to be abolished.  

As the learned Professor of Law, John Rawls in his Theory of Justice pointed out above justice is subjective and this is why some actions may be deemed just or unjust, which, means that there is no universal concept of justice or standards upon which justice can be determined. Therefore, in some countries, death penalty may be unjust but in South Sudan where the majority of the members of the communities are still at primordial stage, death penalty as a form of justice is beyond question.

Thus, in communities like Dinka, Nuer and other tribes in South Sudan who keep cows and where majority of the people are at mechanical stage, such people do not reason as individuals but they reason as a group and act as a group. This means that one person can lead the group into crime and in order to control such people and to make them obey the law and for them to move away from crowd mentality, there is a need for tough punishment so that they fear for their own lives before realization that it is important to obey the law. It is therefore very unfortunate to see the Hon. Minister making extravagant statement that does not reflect the reality on the ground in South Sudan. The Minster has failed to clearly understand that justice is not approached with certain standards set or predetermined by a group of people or a nation but it is the conscience of a given community, or people as it is conditioned by the way the people feel about a certain subject.  Hence, where people believe that a certain action or decision is unfair then injustice is brought into question. Hence, the minster should have properly understood that people obey law and respect institutions because of being fair or just. What is fair and just is not determined by standards but it is a matter of fact. This means that where people perceive certain law or action to be unfair then they will not obey such a law and insecurities may persist until the right justice is applied.  

Whereas South Sudan is a member of the UN which is considered to be made up of civilized countries but justice of each country or approach to crime in each country is not determined by the UN or members of the international community but by the local needs of the people. This implies that justice evolves with the evolution of the communities which further means that what used to be perceived as unjust in 1960s is currently perceived as just. For an action to be considered as fair, it must be appropriate as applied within the context and nature of communities.

As seen above, I can go on and on explaining the concept of justice to show that the Hon.Minister made such a comment because he has not understood the concept of justice itself since he is looking at justice as something universal. This is proved by the fact that he readily accepted the argument of the St. Egidio without questioning the veracity of the argument that death should be abolished.

Second to it, whereas death penalty may not be just or fair in some countries putting forward such an argument but in the case of South Sudan it is different. The death penalty is the viable tools for controlling crime and communal violence in cattle keeping communities. Therefore, the argument by the Minister that death penalty would soon be abolished as it is not part of the culture of South Sudanese is baseless. Why? Because culture is not static as it changes with the change of the people’s lifestyle. Hence, gun culture has never been a South Sudanese culture but today it is part and parcel of it, which means there is a need to adopt a new punishment to combat the culture of killing with impunity that comes with gun culture.  In addition, with guns even one person can destroy the whole community and this implies that there is a need for grave penalty to any person who kills with guns so that the gun holders are psychologically deterred so that they are able to respect lives of other people not because they value the lives of others but because of the fear of punishment.

Thirdly, the Hon. Minister argues that death penalty was introduced by the colonizers and therefore it should be abolished as it was not part of South Sudanese culture. With due respect, the Minister argues this point as if he is a lay Panafricanist who is not a lawyer. The Minister ought to have thought that even the structure of the Government of South Sudan he is working in today was introduced by the colonizers and if he did not want anything from colonizers he should have begun that everything which was brought by colonizers including the type of the government he is working in should be done away with in order to eliminate whatever is colonizer in nature. Otherwise, the Minister should not elect and select.  

Fourthly, the Minister further argued that instead of death penalty, the compensation should be adopted and the relatives of the deceased should always be asked to elect whether to go for compensation of the blood poured by the accused or demand for the death penalty to be imposed on the accused. This statement by the Hon. Minister shows that he has failed to understand the role of the government in protecting citizens of South Sudan. As it has been pointed correctly by some writers, the security of the citizens is a core government responsibility, necessary for economic and social development and vital for the protection of human rights. This means that security is fundamental to people’s livelihoods, to reducing poverty and to achieving sustainable development. Security relates to personal and state safety, access to social services and political processes and such a security can only be achieved through setting proper criminal justice system controlled by the state not citizens as the Hon. Minister seems to suggest.

It is in relation to the above, the traditional concept of security is being redefined to include not only state stability and the security of nations but also a clear focus on the safety and well-being of the people. This stems from the recognition that development and security are inextricably linked is enabling security in different countries to be viewed as a public policy and governance issue inviting greater public scrutiny. Therefore, by reaching conclusion as he did, the Hon. Minister is suggesting that the crime of killing human being by another human being and any other crimes in South Sudan should be privatized so that the State should only do what private citizens say concerning the crime. The implication of the Hon. Minister’s argument is that people of South Sudan should not be citizens of South Sudan but members of their own communities which the country called South Sudan do not have any responsibility to protect. It further implies that South Sudan has abrogated her duty to maintain security in the country which further means that there is no need for the Ministry of Justice and Constitutional Affairs and other institutions like the Director of Public Prosecution (the DPP) and the Police which are responsible for enforcing of criminal justice. Moreover, by introducing the democracy in issues of crime so that citizens are the ones to decide what kind of punishment to be given, there is going to be a lot of uncertainty in criminal justice which is going to be the source of insecurities as well.

Fifthly, the Hon. Minister is making fair but false assumption that citizens of South Sudan are the same as they have the same needs and aspiration, which is not true. Whereas in most part of Equatoria people may favour compensation as a form of appropriate justice mechanism in address murders among some cattle keepers community is no longer relevant since some youth kill with intention to compensate as clearly summed up in the following phrase “Yin aba nok ku puk yin” which literally means “I will kill you and compensate your blood”. In such a community, blood compensation is not appropriate as a form of justice since it may even increase killing as it will license to the killers.  In other words, the minister should not make general statement in regard to the type of justice since justice for a given community depends on context in which the community finds itself.

Sixthly and final, the main reason we have state institutions responsible for the enforcement of criminal justice as referred to above is because criminal justice is vital for maintaining the security of the country. In fact, the Hon. Minister did not address his mind to the fact that citizens are not supposed to be the ones to decide what kind of punishment to be meted out of the accused after having pleaded or having been proved guilty to the required standard but it is the State to decide through courts so that it acts as deterrence to individuals who are planning to commit the same crime.  This is the reason we have in the institution responsible for the enforcement of criminal law. Criminal law, like the constitutional and administrative law is public law that regulates the relationship between the state of South Sudan and her citizens. This means that where a crime is committed it is committed not against the citizens but against the state which forces the State to prosecute the crime on behalf of the citizens as a means of protecting citizens against the committal of the same crime in future. What the Minister ought to have understood is that among all laws, criminal law is the most important law that all States must take care of well if the State is going to be stable security wise as mismanagement of criminal justice is always the source of insecurity in any country.

In summary, Hon. Minister Paulino Wanawila Unango has erred in making such statement as it represents the position of the government which shows that the Government of South Sudan has not understood its core duties and why we have the government in place. One of the reasons we have any government is the reformation of the citizens as it was in the United States of America after civil war that occurred in 1860s and after 1949 in China. In fact, if the criminal law or criminal justice system is well-managed the security can be maintained and the system can be reformed successfully. This means applying laws to meet local needs not international actors need. Otherwise, the Hon. Minster should understand that if criminal justice is mismanaged, the insecurity will never go away and citizens will always be insecure.  

The Author is a lawyer by profession; he graduated with honors in law from Makerere University, School of Law. He participated in various workshops and training in community law and community mobilization in awareness of their constitutional rights in Uganda. He is the member of Public Interest Law Clinic (PILAC) and NETPIL (Network of Public Interest Lawyers) at Makerere University; he is currently doing research with NETPIL on private prosecution; he is trained in Alternative Dispute Resolution (ADR); he participated in writing Street Law Handbook on Economic, Social and Cultural Rights in Uganda. He can be reached through juoldaniel2003@gmail.com or +256784806333.

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