Peace and Justice Newsletter (Dec. 2014)

Godfrey Mupanga’s article provides an overview of the African Commission on Human and Peoples’ Rights (ACHPR), the main institution tasked with monitoring and reporting on the implementation of the African Charter on Human and Peoples’ Rights in states parties. Riek James Doar discusses a proposal for Special Customary Law Courts to be established as part of a transitional justice program in South Sudan. My article focuses on rule of law and justice in the formal court system. David K. Deng concludes with some observations on the role that civil society actors have played in engaging citizens in discussions about a new constitution for South Sudan.

We hope that the readers of this newsletter find these insights helpful in the ongoing struggle for durable peace with justice in our country.

Faithfully yours,

Opportunities for Justice in the African Commission on Human and Peoples’ Rights (ACHPR)

Godfrey Mupanga*

Introduction

Recently, the news media were awash with news that the Government of South Sudan had acceded to a number of regional and international human rights treaties. Among these treaties is the African Charter on Human and Peoples’ Rights (‘the Charter’), which is the foundational human rights instrument of the continent. It seems that instruments of accession to several human rights treaties were duly executed. But, to date, the instruments of ratification have not been lodged with the relevant depositories for the treaties to apply to South Sudan. If the Government of South Sudan deposits its instrument of accession, the Charter would reach full ratification status, as all other African Union member states are already states parties. This article focuses on the African Commission on Human and Peoples’ Rights (ACHPR), the main institution tasked with monitoring the implementation of the Charter and enforcing its provisions in states parties.

African Commission on Human and Peoples’ Rights (ACHPR)

Set up in 1987, the ACHPR is composed of 11 Africans of impeccable reputation, morality and competence in human rights. Individuals with legal experience are preferred. Members of the ACHPR are nominated by states parties to the Charter and elected by the Assembly of Heads of States and Governments of the AU, but they serve in their personal capacities

The ACHPR holds two ordinary sessions each year where it deals with periodic reports submitted by states parties, reports submitted by the ACHPR’s special mechanisms, reports of special missions to specific countries as well as complaints of human rights violations submitted by individuals, NGOs and states. It is important to emphasize that the ACHPR is not a court of law. It is a quasi-judicial body. Its decisions are for all intents and purposes, recommendations. To ensure implementation, the ACHPR submits these recommendations for adoption by the Assembly of Heads of States and Governments, the highest decision making body of the AU. Moreover, through the individual complaints mechanism, the ACHPR, has over the years developed an impressive collection of jurisprudence as to the meaning and constituent elements of the rights enshrined in the Charter.

Today, throughout the continent, human rights defenders in general and legal aid lawyers working on access to justice make use of the ACHPR to obtain remedies for victims of human rights violations who for one reason or another could not obtain justice in their states after exhausting all the available domestic legal remedies. Lawyers have adopted the jurisprudence of the ACHPR to enrich their arguments in domestic courts. Lawyers have also submitted complaints that are referred to as ‘communications’ to the ACHPR alleging human rights violations by the concerned state and praying for relief for the victims. Through its urgent measures, in a number of emergency communications where the victim’s life appears to be in imminent danger, the ACHPR has adopted provisional measures that have successfully prevented irreparable harm to the victims while the communication is being considered. Human rights defenders in general submit shadow reports in the state party reporting mechanism, thereby availing the ACHPR with an alternative picture to that painted by states in their periodic reports.

Individual Complaints Mechanism

Lawyers providing pro bono legal services to victims of human rights violations in many African countries will attest to the difficulty of obtaining legal remedies for their clients. Several reasons account for this state of affairs. These may include mere non-existence of suitable institutions to guarantee legal remedies, a collapsed justice system due to conflict or other political unrest, a compromised and corrupted justice system, as well as lack of capacity in the justice delivery system to avail effective remedies to victims of gross human rights violations. The individual complaints mechanism of the ACHPR provides an avenue for guaranteeing legal remedies for victims of gross human rights violations that for any of the reasons cited, fail to obtain justice in their countries.

The hallmark of the individual complaints mechanism is simplicity. From the beginning to the end, the procedure for submitting a communication to the ACHPR is very simple and straightforward. There are no hard and fast rules as to the format or precedent that a communication must follow. The only requirement is that it should be submitted in writing. A communication can even be submitted to the ACHPR in the form of a letter. Legal representation is not required, although the assistance of a lawyer may be useful. It is not necessary to appear before the ACHPR to argue the case. The communication does not even have to mention the articles of the Charter that he or she alleges have been violated. It is sufficient if the communication provides factual information on the alleged violation, for example, what happened, when and where did it happen, how did it happen, who are the victims and the perpetrator.

Knowledge of the African human rights system is limited even among lawyers. Hiring lawyers and traveling to countries where the ACHPR sessions take place are beyond the reach of the majority of people on the continent. If we consider all these factors together, it becomes clear why the simple and straightforward nature of the communication procedure is acknowledged as an attractive feature of the individual complaints mechanism.

An individual, a group of individuals, NGOs, and states that have ratified the Charter can, on their own behalf or on behalf of others, submit a communication to the ACHPR. There is no need for a business or any other relationship to exist between the victim and the organization or individual submitting a communication. In a live example, a little known NGO established and based in Malawi has competently submitted a communication to the ACHPR alleging gross violation of the rights protected in the Charter by Mauritania.

Article 56 of the Charter provides a list of conditions that must be satisfied for the ACHPR to consider a communication. For example, a communication should avoid insulting language. The name of the author must be given even if the author wants to remain anonymous. The ACHPR will send a redacted copy of the communication to the state against which allegations of human rights violations are made. Anyone submitting a communication must not rely on the news media as the sole source of the allegations raised. Arguably, one of the most important conditions listed in Article 56 is the requirement that anyone submitting a communication must first of all exhaust all local or domestic legal remedies. The meaning of this condition as well as what qualifies as a domestic legal remedy has generated a lot of jurisprudence by the ACHPR. But, this exhaustion of domestic legal remedies rule has its intellectual mooring in the idea that as an intervention of an international nature, the ACHPR is a forum of last resort, which may be called upon only when the local justice delivery system fails to guarantee the victim’s rights and legal remedies.

Conclusion

Acceding to not only the African Charter on Human and Peoples’ Rights, but other human rights instruments can create advantages for individuals that seek justice, but otherwise do not get sufficient remedies in South Sudan due to non-existent institutions or laws. The provisions of the human rights instruments can fill in the gaps in the laws. They can also provide alternative avenues for accessing justice. In the specific case of the African Charter, the ACHPR presents opportunities for alternative avenues for accessing justice to victims of gross human rights violations who despite exhausting all the limited local remedies available, still for one reason or another fail to obtain justice in South Sudan.

* Godfrey Mupanga is the program manager for the Access to Justice program at Pact-South Sudan.

Relevance of Customary Justice to Transitional Justice in South Sudan

Riek James Doar*

Background of Customary Justice

Customary justice may be defined as justice provided in customary courts using customary laws as opposed to justice in the statutory courts.

In pre-colonial Sudan and before the advent of chiefs, the people of today’s South Sudan strongly held on to their cultures, with centralized communities using kings to settle their disputes and decentralized communities using neutral elders who are largely religious rather than political to resolve disputes through mediation. For instance, the Shilluk, the Azande, and the Anuak on one hand had kingdoms, while the Bari, the Fertit, the Nuer and the Dinka were and today are largely governed by community elders. These customary institutions were recognized in pre-independence South Sudan through the Chief’s Courts Ordinance, 1931 and again by the People’s Local Courts Act, 1977, to settle disputes and award mainly compensation to the aggrieved parties in both criminal and civil matters (Jok 2004, pp. 58-60).

In the independent South Sudan, the cultural and traditional chains are never broken. South Sudan statutory law unreservedly acknowledged customary law and as such placed it within the legal framework and systems (TCRSS 2011, Art. 177; LGA 2009, Ch. X). To date, customary justice is being consumed in large scale in South Sudan.

While there is no distinct procedure for criminal and civil matters under customary justice, it has nonetheless been a source of social order among tribes in South Sudan for generations (Jok 2009, p. 7). Customary law courts are inquisitorial and do not require legal representation and through them, crimes which arose during ethnic fighting can be solved (Ibid., p. 40). Cultural differences lead to variations in customary law courts procedure, but there also exist great similarities, especially among the centralized societies on one hand and the decentralized societies on the other. The major remedy in customary law courts is compensation, usually paid in form of herd of cattle for major offences or restitution in the case of property wrongly acquired.

Why should customary justice be included as part of transitional justice efforts in South Sudan?

In the current conflict in South Sudan, family members are divided; neighbors, village, payam and county members have killed each other and destroyed each other’s property. One approach to reconciling, harmonizing and unifying those broken families, villages, payams and counties, could be to make use of customary justice as delivered by Special Customary Law Courts.

Customary justice is often preferred to even the existing statutory courts. There are a number of reasons for this: (i) the procedure in the customary law courts is simple and as a result most disputes are settled at a single day’s sitting with a verdict announced the same day, (ii) the inquisitorial system or style used by chiefs engages the parties during the trials and make the hearings and trials generally expeditious (Wuol Makec 1998), (iii) customary law courts are cheap (Evans-Pritchard 1940, pp. 291-95), (iv) the tenet of customary laws is reconciliation and as such they are preferred by many people to enable them have peaceful and fair society, and (v) customary courts mainly provide compensation or restitution (in the case of property wrongly acquired) as the key remedies.

Jurisdiction of Customary Law Courts

Today, customary law courts have judicial competence to adjudicate on customary disputes and make judgments in accordance with the customs, traditions, norms and ethics of the communities. They do not, however, have the competence to adjudicate on criminal cases except those criminal cases with a customary interface referred to it by a competence statutory court (LGA 2009, § 98).

Jurisdiction of the Envisaged Special Customary Law CourtsIf

Special Customary Law Courts were established, their territorial and personal jurisdiction would be limited to a village and payam. Inter-tribal (Hybrid) Customary Law Courts would be established to adjudicate cases in cosmopolitan towns, such as county headquarters and states capitals. Subject matter jurisdiction of such courts would be limited to property related cases, including but not limited to; destruction of houses by known village or community members, theft of household items, theft of cows, and appropriation of land or houses, among other offenses. Such envisaged Special Customary Law Courts should have special rules enacted by National Legislative Assembly in consultation with the Councils of Traditional Authority Leaders (COTAL) and chiefs. These rules would minimize the challenges of harmonizing the customary laws of various communities and non-conformity with human rights principles and international law.

If given a much broader subject matter jurisdiction, the envisaged Special Customary Law Courts could also expedite truth-telling leading to the restoration, reconciliation, forgiveness and healing among communities. In doing so, they will make use of traditional cleansing and reconciliation processes, which are prevalent in South Sudan. In most Nilotic tribes, for example, cleansing processes are preceded by truth-telling or confession (Howell, p. 43), payment of compensation, and cleansing rituals, which are usually marked by the killing of a bull and the performance of traditional rites. At the end, the parties are ordered to forgive each other. Such processes among the Nuer and Dinka for example, were led by spiritual leaders (Kuar Kwac or Kuar Muon among the Nuer, and Bany Bith among the Dinka) who up to today, maintain the spiritual cleansing role when call upon by the customary law courts chiefs.

In centralized societies such as Shilluk, kings through their specialized subjects perform rites, such as the slaughter of a goat, to purify homicide offenders and reconcile them with families of the deceased (Wassara 2007, p. 9). The verdict centers on compensation of the victim by herd of cattle. A cleansing ritual then follows, which involves slaughtering a goat or a cow to cleanse the parties, hence marking the reconciliation and healing process (Ibid.). Among other non-Nilotic tribes such as the Azande, chiefs and community elders lead cleansing ceremonies that lead to reconciliation and normalization of relationships. Chiefs and elders use moral pressure to ensure that offenders accept responsibility and that relatives of the deceased forgive after the performance of traditional rites (Ibid.).

Conclusion

By comparing the above processes, it is clear that cleansing processes leading to reconciliation and healing among different cultural groups in South Sudan are similar, in that they revolve around the performance of rituals and traditional rites through purification by slaughtering of a sacrificial animal. The style of doing it may differ but the goal is one: to cleanse, reconcile, heal and harmonize the parties. Thus having Special Customary Law Courts is an integral part of any transitional justice process in South Sudan.

* Riek James Doar is a South Sudanese lawyer working for the Access to Justice program at Pact-South Sudan.

References

Evans-Pritchard (1940), “The Nuer of the Southern Sudan,” in Fortes, M. and Evans-Pritchard, E.E., African Political Systems, London-Oxford University Press, pp. 291-95.

Government of the Republic of South Sudan (GRSS), Transitional Constitution (2011), available at http://www.refworld.org/pdfid/525e88ef4.pdf.

— Local Government Act (LGA) (2009), available at http://mlgi.org.za/resources/local-government-database/by-country/sudan/sub-national-legislation/The%20Local%20Government%20Act%202009.pdf/view.

Howell, P.P. (1955), Manual of Nuer Law, Oxford University Press, London.

Jok, Aleu Akechak, et al. (2004), A study of Customary Law in Contemporary Southern Sudan, World Vision International and the Secretariat of Legal and Constitutional Affairs, available at http://www.cmi.no/sudan/resources.cfm?id=710-.

Wassara, Samson S. (2007), Traditional Mechanisms of Conflict Resolution in Southern Sudan, Berghof Foundation for Peace Support, available at https://www.eisf.eu/library/traditional-mechanisms-of-conflict-resolution-in-southern-sudan/.

Wuol, John Makec (1988), The Customary Law of the Dinka People, Afroworld Publishing Company.

Rule of Law on Trial in South Sudan.

Wani Mathias Jumi*

Human beings existed before governments. They had a means of protecting their own offspring and belongings from those who do not follow the norms of society. But as they became subjects of civilization, governments emerged and the theory and practice of social contract sprang up, in which humans agreed that their lives and property be entrusted and protected by the state in exchange for an agreement to pay taxes and abide by the law. This fundamental premise of statehood is now in jeopardy in South Sudan.

Selective Justice is Not Rule of Law

Article 122(5)(a) of the Transitional Constitution provides that justice shall be done to all irrespective of their social¸ political or economic status, gender, religion or beliefs. When a Minister was killed in 2011 prosecution of the accused was quickly done and the case finished within a reasonable time. When Pagan Amum sued Arthur Akuein for defamation, the case was quickly heard and determined.

For the rest of us, however, justice is more selective. When security agents killed 11 unarmed civilians who were exercising their constitutional right to a peaceful demonstration in Wau, no arrest or investigation was done. In fact, even the committee from the National Assembly was driven away by a mere state government in Wau. A special court was immediately constituted to prosecute innocent people, but the killers up to today are at large and not prosecuted. When companies supplied nothing but air to our dying citizens in 2008, it took over five years to set a committee to investigate. What is there to be investigated other than prosecuting these thieves and dissolving the companies?

Justice Delayed is Justice Denied

Article 122(5)(b) of the Transitional Constitution provides that in adjudicating cases of both civil and criminal nature, justice shall not be delayed. Many judges, lawyers and prosecutors do not understand the reason for this constitutional provision. When it comes to criminal cases, they even don’t know how the delay of justice is related to the rule of law. This brings into question the integrity of the criminal justice system, especially when an accused person is not granted bail. The non-grant of bail infringes on the right to presumption of innocence and right to personal liberty. An accused person who is being held on remand in the prisons for months or years and suffering from endless court adjournments because prosecution witnesses cannot be found is totally unacceptable.

My appreciation goes to the administration of the Judiciary and the Ministry of Justice for creating a mobile court and choosing two hard-working judges to handle criminal cases in Juba prisons. The judges are committed to their work, understand the right of criminal suspects to speedy trial, and are always alert to the constitutional rights of the accused. They control their courtrooms and wield the court’s power effectively, especially when parties to the case are exhibiting delaying tactics to the detriment of the accused. They apply the law to give deadlines for production of witnesses by the prosecution lawyers, who are always fond of giving unconvincing reasons why court should adjourn. The judges adjourn for short periods that are reasonable and fair to both parties.

In contrast to the mobile court judges, some judges don’t even mind that an accused person remain innocent until proven guilty and has the right to speedy trial and the right to personal liberty. They don’t even question why a particular party is constantly seeking for adjournment or why such party is always absent from the proceedings. Prosecutors may apply for an adjournment for two months and even if the defense lawyer opposes the application, the judge just in less than two minutes without regard to the law and the rights of the accused will grant such long adjournment. Yet, at the same time, the accused’s application for bail is not granted and after a one to two years court proceeding, the accused is acquitted.

Article 122(1) of the Transitional Constitution provides that judicial power is derived from the people and shall be exercised by the courts in accordance with the customs, values, norms and aspirations of the people and in conformity with this Constitution and the law. Are these judges being held accountable for their work as in other countries where each judge is expected to have disposed not less than 200 cases in a year?