Makoi Majak, LL.B (07 August, 2021),
Aug 09, 2021 — Last week the United Nations Mission in South Sudan (UNMISS) released a statement decrying the “spate” of human rights abuses by the military governors of Lakes state and Warrap state. The report accused both Gen. Rin Tueny and his Warrap counterpart Gen. Aleu Ayieny of using extra-constitutional means to fight insecurity in the two neighbouring states. The UNMISS Human Rights Division said it has documented a total of 42 extra-judicial killings of criminal suspects without being accorded fair trial. It noted that 29 of these executions were in Warrap state whereas 13 people were executed in Lakes at the “instructions of state officials.”
The UNMISS statement has generated a raging debate among South Sudanese on social media with many questioning the motive of the UNMISS. Demonstrations have been held in Lakes and Warrap states with angry protesters calling for an end to the UNMISS mandate. This is a bit pessimistic. Proponents argue that extra-constitutional measures are necessary to preserve the states. Others say the actions are a blatant violation of natural rights guaranteed by the Constitution.
Violent killings
Last year in August, a deadly clash between armed gelweng youths and members of the SSPDF left over 100 people dead and several injured in Tonj East County. A statement from the SSPDF headquarters confirmed that the clash was a disagreement on disarmament operation and said the fighting erupted in the Roljyang area as SSPDF personnel attempted to seize weapons from local community members, with security forces becoming engaged in a four-hour fire-fight after two civilians were shot dead in unclear circumstances. The violence quickly spread to nearby villages, with armed civilians attacking an army base in the nearby town.
Back in June 2020, Radio Tamazuj reported an inter-communal violence that killed 32 people, others injured and villages razed down in Tonj North County. The violence fitted the Apuk Padoc and Atok Buk communities, following an incident on May 27, in which a man from Apuk Padoc was beaten to death by members of the Atok Buk community in the town of Awul.
In response, President Kiir sent Gen. Aleu Ayieny as the new governor of the conflict-infested state. His terms of reference were short and precise: end this insecurity in the state by all means necessary. Gen. Aleu ordered for the immediate execution of anyone in cases of robbery with violence or in premeditated murders. Testimonies from Warrap suggest Aleu’s methods have worked. The rest is history.
On the other hand, Lakes has severely been ravaged by inter-communal conflicts and road insecurity. Ranging from violent gang shootings, carjacking, cattle raids etc. which have left hundreds dead and many homes disabled over the years. These terror activities have persisted for years since the first and only elected administration of former governor Chol Tong Mayai.
Recent criminal activities which triggered outrage and disgust include the merciless killing of two lactating women in Rumbek East by armed gelweng in a suspected revenge attack; the abduction and killing of two aid workers along Mapuordit-Aluakluak road; and the raiding of more than 300 cows along Rumbek-Yirol border points by the self-proclaimed Abakak gangs.
Having boasted of success from Warrap state President Kiir appointed Gen. Rin Tueny, (then MI chief) to restore order in the state. The methods of the military governor are the subject of this discussion
Juba Conference
Shortly after his appointment as the incoming military governor of Lakes Gen. Rin Tueny immediately initiated a popular consultation between his administration and the citizens of Lakes. The Conference was held on 20th June, 2021 in Freedom Hall and attended by all persons from Lakes State in Juba. Among the eminent persons in attendance were Lakes state chiefs, former Vice President of Sudan Prof Machar Kechuol, decorated war veteran Gen. Daniel Ayual Makoi, interior minister Paul Mayom, and police IG Majak Akech. The intention was to solicit the views and possible solutions to combat raging conflict in the state.
It’s at this Conference that a consensus was reached. It observed that in order to restore security and the rule of law, and as a matter of state “necessity”, it was resolved that “anyone who kills[ed] another” shall be put “to death” by execution.
Many were worried that the Community was slowly but surely backsliding into a state of chaos and anarchy; and expressed their frustration with the security and law enforcement agencies.
The question waging on many tongues is whether the Constitution provides for the doctrine of civil necessity? Simply put, does the Constitution envisage a situation where harsh measures are excusable in extraordinary circumstances?
Well, many lawyers have taken a prime position on this. Displaying the art of their trade. Different lawyers, different interpretations.
The Law
The Transitional Constitution of South Sudan (as amended) is the supreme law of the land and binds all persons, institutions and governmental organs. Article 3 is couched in clear and ambiguous terms. It states that the constitution derives its authority from the will of the people and requires that all state constitutions and state laws conform to it and all legal instruments ratified by South Sudan. Public officers are, before assuming public office, required to take oaths of allegiance and loyalty to the Constitution.
Part Two of the Constitution sets out the nature and application of the bill of rights. The Bill of Rights is understood as the covenant among the people of South Sudan and their government at all levels. The bill of rights is regarded as the basis of social justice, equality, and democracy for its rigidity.
Article 19 of the Constitution guarantees every accused person the right to a fair trial. This includes but is not limited to the presumption of innocence; the right to be informed of the charges relating to arrest; the right to be heard in an open and competent court of law; and the right to defend oneself. This forms the foundation of the principles of natural justice and procedural fairness.
Every South Sudanese has the inherent right to life, dignity, and integrity of their persons which shall not be ‘arbitrarily’ deprived. What this means is that the only time a person’s life may be lawfully taken is through strict adherence to the provisions of the law. The steps to be followed in a criminal trial are set out in the Code of Criminal Procedure Act, 2008.
Article 21 restricts the imposition of the death penalty save for serious offences in Section 206 of the Penal Code Act, 2008. Consequently, death penalty shall not be imposed on a person under the age of eighteen or a person who has attained the age of seventy. Equally, the death penalty cannot be executed against a pregnant or lactating woman, until a 2-year period of lactation has elapsed.
Necessity doctrine
This brings us to the notion of “doctrine of necessity” as a justification for extralegal or extra-constitutional activities. The term doctrine of necessity is a judicial invention used to describe the basis on which government actions by administrative authority, which are designed to restore law and order in a given emergency, are found to be constitutional or necessary. It’s deducted from the elements of legal philosophy that law must serve the interest of the society it regulates.
The circumstances of an emergency necessitating an extra-constitutional action may involve the destruction of property to save a life; the killing of one (innocent) person to save the lives of a greater number (still debatable); and a change of governmental structures through revolutionary coups. A good example of this was demonstrated in the 2018 revitalized transitional government of national unity; when the warring parties agreed to change the structure of the executive by introducing five vice presidents. This action was stricto sensu unconstitutional however, the Constitution did not envisage a situation where in order to preserve public security and peace it was necessary to accommodate five vice presidents and appointed state governors without a referendum.
The argument of necessity is raised to validate extra-legal issues falling outside the purview of the constitution but are very necessary to preserve political stability in a given society. It is acknowledged that a constitution cannot contemplate every situation created by human conduct. It reacts procedurally to the emerging crises through constitutional amendments, which are often arduous than the problem at hand required.
Necessity circumvents the rule of law in order to get out of a given political quagmire. It is a necessary evil. The rule of necessity has been used in a private person’s actions against others, administrative actions, and judicial proceedings liberally despite the fact that it is widely recognised as unfair. For example, the Transitional Constitution demands that an accused person be accorded a fair trial, this right may however be limited in a state of emergency.
A proper reading of Article 190 on the powers of a President to declare a state of emergency includes suspension of parts of the bill of rights but prohibits any infringement on the right to life. Therefore in times of emergency, a murder suspect may be held in custody for a longer period; however, he may not be condemned unheard on the whims of the president or parliament. The Constitution donates the superior courts (the high court, appeals court, and the Supreme Court) only the jurisdiction to pronounce themselves over a murder case. Even after this, the constitution recognizes acts of presidential clemency, where the president of the Republic may overturn a criminal conviction.
Lakes
In the aftermath of the Rwandan Genocide, 50,000 Rwandan refugees and local Burundis fled to the border of Tanzania seeking safety, after gunmen attacked a refugee camp in northern Burundi. According to the Office of the U.N. High Commissioner for Refugees: “What happened next was unprecedented. Rather than welcoming them as the country had regularly done in the past, Dar as Salaam deployed the army, closed its border and effectively told the refugees to stay away.” Strained by the local and environmental pressures of hosting the 500,000 Rwandan refugees that had arrived in 1994, Tanzania explained its change in policy that protecting and assisting refugees has brought new risks to its national security, exacerbated tensions between states and caused extensive damage to the environment.
What this means is that, Tanzania had invoked Article 33 of the ILC’s Draft Articles on State Responsibility on the concept of “state of necessity” as an excuse for a border-closure that may have violated its duties under international law.
The situation Lakes state finds itself in is akin to this Tanzanian story. It involves weighing two highly competing interests: an individual’s good against the good of the many. Between committing a crime to survive or doing nothing. Of “extra-judicially” executing a criminal suspect in order to save a greater number of innocent lives at the hands of wanton armed killers or waiting on the tortoise travel of the law while the same gangs unleashed terror on the community. Of course, public interest must override all, including the law.
In order to understand and appreciate what is happening in Lakes today one needs to be physically present on the ground. One needs to experience first-hand, the threats to the state’s existence as exacerbated by the violent activities of armed gelweng youths. One needs to see the vulnerability of families who’ve been dismantled when their sole breadwinner is ambushed and murdered along major highways. One needs to hear the desperate cry of babies whose mothers are murdered in cold blood by the morally bankrupt Gelweng criminals. One needs to hear the testimonies of patients lined up around a closed hospital fence or a business that has shut down due to insecurity.
In order to restore public security without offending the law, Governor Rin and his administration must be flexible to perform a delicate balancing act and avoid a clash of the obligation to uphold human rights and the right of the state to exist.
The author can be reached through social media at @MakoiMajak
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