BY JUOL NHOMNGEK DANIEL, MP
Africa-Press – South-Sudan. .
Introduction
It has become abundantly clear that South Sudan’s rule of law is out of gear, which is worrying to all of us. Various reports by Amnesty International, Human Rights Watch, the United Nations Human Rights Commission, and other human rights defenders make it clear that arbitrary arrests and unlawful detentions of citizens remain a serious human rights concern in South Sudan. The reports fault state security operatives and armed groups for subjecting citizens to illegal and arbitrary arrests and other violations as instruments of control.
The underlying issue that enables law enforcement agents and non-state actors to act contrary to the law is that they do not understand the value of the law. Government officials and law enforcement agencies in South Sudan have not understood that their actions, contrary to the Government of South Sudan’s duties under regional and international instruments, have negative implications. South Sudan has signed many regional and international human rights instruments that impose an irrevocable duty to observe the regional and international human rights standards.
South Sudan signatory to regional and international frameworks
After becoming independent on 9 July 2011, South Sudan signed both regional and international legal frameworks that prohibit arbitrary arrest and detention. South Sudan has signed the African Charter on Human and Peoples’ Rights and the International Covenant on Civil and Political Rights (ICCPR), which are key instruments on issues of fundamental freedoms and liberties of South Sudanese citizens. These instruments enjoin the state of South Sudan to protect its citizens and members of the public legally in the country against arbitrary deprivation of personal liberty in all its forms.
Reading the relevant provisions of the above regional and international instruments together with Article 19 of the Transitional Constitution of the Republic of South Sudan, South Sudanese authorities have the duty to, by all means, prevent the deprivation of personal liberties before, during, or after trials. This also covers the protection against deprivation of personal liberty in the absence of any kind of trial, such as in administrative detention.
What is arbitrary detention?
According to the United Nations Human Rights Commission Working Group on Arbitrary Detention, the notion of ‘arbitrary’ includes both the requirement that a particular form of deprivation of liberty is taken per the applicable law and procedure and that it is proportional to the aim sought, reasonable, and necessary. It is important to note that ‘arbitrariness’ should not be equated with ‘against the law’, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability, and due process of law. In this regard, the working group provides for the following instances in which arbitrary deprivation of personal liberty can be experienced:
When it is impossible to invoke any legal basis justifying the deprivation of liberty. For instance, a person is kept in detention after the completion of their sentence or despite an amnesty law applicable to them.
When the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25, 26 and 27 of the International Covenant on Civil and Political Rights.
When the total or partial non-observance of the international norms relating to the right to a fair trial, spelled out in the Universal Declaration of Human Rights and the relevant international instruments accepted by the States concerned, is of such gravity as to give the deprivation of liberty an arbitrary character.
When asylum seekers, immigrants, or refugees are subjected to prolonged administrative custody without the possibility of administrative or judicial review or remedy.
When the deprivation of liberty constitutes a violation of international law for reasons of discrimination based on birth; national, ethnic or social origin; language; religion; economic condition; political or other opinion; gender; sexual orientation; or disability or other status, and which aims towards or can result in ignoring the equality of human rights.
The standards and norms on the prohibition of unlawful arrest and arbitration detention constitute values underpinning criminal laws that protect everyone, as they are general. Thus, this article is intended to explain the importance of law and what makes law, a law. It also explains the principles of legality, which is the inherent value of a good criminal law.
Law and the rule of law
Law is largely respected not because of force but because individuals trust it to protect their interests. For the law to be effective, it should not be used as a tool of oppressing citizens and suppressing the oppositions that object to some policies of the state. The law is not intended to protect a particular interest, but it is a system of rules, created and enforced by social or governmental institutions, to regulate behavior and maintain order in general, except where the law specifies a group it protects, as it is provided for in the case of affirmative action.
For the rule of law to function, all citizens and other members of the public must obey the order. The order is the source of the rule of law. The rule of law is made up of principles, practices, and customs recognized as binding within a community maintained by a controlling authority, such as the executive through the law enforcement agencies. Those maintaining law and order must remain within the law for their actions to be legal.
The legal aspect of law is determined based on the standards of human rights as provided for under the Bill of Rights and the citizenship rights and duties in the Transitional Constitution of the Republic of South Sudan in Articles 9 to 34 and Articles 45 and 46. The Bill of Rights is the centre of the government’s functions, and for law enforcement agencies to work effectively and efficiently, they must objectively observe the law to ensure that human rights and fundamental freedoms are protected. The objective enforcement of law is crucial for a well-functioning society.
The law acts as a framework for order, justice, and the protection of individual rights. Law establishes rules and regulations, resolves disputes, and provides a means for holding individuals accountable for their actions. Laws ensure a fair and just society by promoting equality, protecting vulnerable populations, and mitigating conflict. Operating within these standards is what defines the legality of the law and legal actions of the government.
Principles of legality as the source of the legitimacy of law
The principle of legality in (criminal) law holds that no one can be convicted of a crime without a previously published legal text that clearly describes the crime. This principle is accepted and codified in modern democratic states, including South Sudan, as a basic requirement of the rule of law. In South Sudan, the Principle of legality is enshrined in the Transitional Constitution of the Republic of South Sudan, 2011, as amended in Article 19 (4), which states, “no person shall be charged with any act or omission which did not constitute an offence at the time of its commission”.
Furthermore, section 6 of the Code of Criminal Procedure Act, 2008 further provides for some principles to be observed by the law enforcement agencies in South Sudan. Specifically, section 6 (d) provides that no punishment shall be inflicted upon any person exceeding that prescribed by the law in force at the time such an offence was committed. The principle of legality goes down to the point that no person shall be compelled to do or refrain from doing anything except by law. This also means that no person shall be convicted of a crime unless there is a previously published or publicly and legally passed law by the Parliament that clearly defines the crime and prescribes a specific penalty.
The same principle of legality dictates that courts that try criminal cases must strictly interpret the criminal law provisions to avoid not non-purposive approach as applied in constitutional cases. This principle also provides that penalties should not be increased retroactively. It is in line with this principle that requires the laws to be clear and understandable to leave no room for ambiguity. This implies that criminal laws should be interpreted narrowly, not broadly, in order to prevent individuals from being punished for acts not explicitly prohibited.
Importance and practical aspects of the principle of legality
The Principle of Legality is a common law presumption that seeks to protect citizens from arbitrary power. It presumes that Parliament does not intend to interfere with fundamental common law rights, immunities, and freedoms. Common law human rights provide the foundational principles for the protection and enforcement of certain human rights. The foundational principles of common law are essential for ensuring fair trials, protecting property rights, and upholding fundamental rights and freedoms. The relationship between common law and human rights is also reflected in the incorporation of international human rights treaties into domestic law, which further strengthens the protection of human rights.
The principle of legality provides a framework for protecting human rights through principles like the presumption of innocence, the right to a fair trial, and the right to due process. These principles are derived from legal precedents and judicial interpretations, which are the basis of common law.
The principle of legality is the basis of the rule of law as it ensures that everyone, including government officials, is subject to the law and can be held accountable. This principle is crucial for upholding human rights and preventing abuses of power.
The principle of legality is important when it comes to the protection of property rights as a fundamental human right. The right to own and use property is essential for economic freedom and individual autonomy in South Sudan. This is why the Transitional Constitution clearly states in Article 28 that it ensures the protection of the right and ownership of property. The principle of legality is reflected in the provisions of the regional and international human rights treaties, such as the African Charter on Human and Peoples’ Rights and the Universal Declaration of Human Rights are often incorporated into domestic common law, further reinforcing the protection of human rights.
The principle of legality is the basis of the mechanisms for enforcing human rights and obtaining remedies for violations of human rights and fundamental freedoms. A person who is affected in the course of the enforcement of the law can claim in courts of law based on the legality of the government officials in criminal cases. The judiciary uses the Principle of Legality to safeguard such rights when an ambiguity emerges in statutory interpretation. This presumption stems from the principle of parliamentary sovereignty and the understanding that Parliament is taken to create legislation with common law principles in mind.
The Principle of Legality operates as a check and balance on its power. Thus, it protects individual citizens from arbitrary use of power by state officials and law enforcement agencies. The government officials are prohibited from the arbitrary or overreaching government action. The principle of legality is the basis of a fair and just legal system, as it prevents people from being punished for actions that were not previously illegal. It defines what behavior is prohibited and what consequences may follow, fostering predictability and trust in the legal system.
It prevents the government from creating new laws or retroactively applying existing laws to punish individuals for their previous actions that were not crimes when they were committed, thereby limiting the government’s illegal and arbitrary use of power. The principle of legality prohibits a court from interpreting a law in a way that expands its reach beyond what is explicitly stated in the law, particularly when it would result in a more severe penalty.
Conclusion
It can be concluded that the rampant arrests and prolonged detention of citizens in different places are against the South Sudan norms and human rights standards. The National Security Act, 2014, as amended, is the law that has contravened the principles of legality. All political and civilian detainees being detained illegally in places that are not officially declared under the law to be legal places for detention are against the constitutional principle of legality.
The principle of legality prohibits law enforcement agencies from arbitrarily arresting, indefinitely detaining citizens, including detaining them incommunicado. The police have the duty to obey the law and implement the law accordingly. The importance of the principle of legality makes it a cornerstone of the rule of law, as it requires the lawmaking bodies to make clear and fair laws that must be consistently applied with the ultimate aim of protecting citizens from arbitrary or abusive actions by the state.
The principle of legality under the laws of South Sudan is to guarantee the foundational principles of South Sudan as justice, equality, liberty, respect for human dignity, and advancement of human rights and fundamental freedoms as provided for under Article 1 (5) of the Transitional Constitution.
Source: Radio Tamazuj
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