Human Rights our
Collective Responsibility
Human and Peoples' Rights
Communication 796/22
Rose Modong Samuel
and Three Others
v
The ReRublic of
South S'udan'
Adopted by thf!
African Commission on Human and Peoples' Rights
Durirsg tile 7;t1' Ordinary Besaw1I, hlR:ldphysically from 20th October to 9th November, 2023
The African Commission on Human and Peoples' Rights
31 Bijilo Annex Layout, Kombo North District, West Coast Region
Phone: (220) 2304361 Fax: (220) 441 0504
Email: au-banjul@africa-union.orq
httoszachor.au.nwo 0 a
Decision of the African Commission on Human and Peoples'
Rights on Merits
Communication 796/22 - Rose Modong Samuel and Three
Others (Represented by John Gerry & Co. Legal
Practitioners)
v. The Republic of South Sudan
Summary of the Complaint:
1. The Complaint is dated 11th May 2022 and is mad~"'against the,:':F.epublicof South
Sudan (the Respondent State), a State Party to the Afric~ Charter on Human and
Peoples' Rights (the African Charter) which it ratified on 23rd October 2013.
2. The first Complainant, Madam Rose MQdo~gSamuef submits the Complaint to the
African Commission on Human and peoples' J,Zights(the Commission) on her own
behalf and on behalf of three others: Mr. Isaac Jugat"Ms. Hellen Ojaba, and Mr. John
Gerry (her son who also serves as the legal represer:l; tive of the Complainants).
3. The Complainants indicate-that Rose Modd,t,lgSamu
odong), a South Sudan
citizen and mother of four (4) children, lived in Lologo I
residential area of Juba,
the capital city, from 1986 to 1992,and from 2007to 27 November 2021.
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4. They also indicate-that on 15 May 199Q<M,odongacquired a rural plot, registering it
in the name of he~:eldest son, Isaac Jugar. Sl;l~used the land for cultivation before it
was officially dem.~rcated as a residential area due to population growth.
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5. The Complainants s~ate that Modongjand her family fled Lologo II during the war
in 1992, returning hohleafter the wa~ in 2007. Since November 2021, Modong had
been living with her eldest son, .4 grandchildren and their mother on the land. The
Complainants state that Modong never had any problems with the land authorities
or any disputes over her land, She always paid her land taxes and complied with all
government regulations.dncluding the updating of land documentation.
6. They allege that in 2021, Mr. Mading Ngor Akec (Mading), a self-styled journalist,
seen often in the company of a large number of soldiers who act as his bodyguards,
evicted people living on a plot next to Modong's and began erecting new buildings.
The neighbor, who had been evicted, instituted legal proceedings against Mading.
However, with the backing of soldiers, Mading blocked investigations.
7. They also allege that after completing the construction, Mading moved into his new
house. A few months later, he went to see Modong, and told her th,
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land and that she should vacate it. Although he did that ofte%~ odb~ET~
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refused to give in to his demands. In one of the attempts, on :t6
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Mading sent an unarmed soldier .to Modong's house. The. SOI?~:()VI~b~.P.~bU':' ~
her, destroyed some of her belongings, and threatened to kill h~I&.S e rerrta1.
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8. The Complainants state that on 27thOctober 2021, Modong filed legal proceedings
against Mading. The latter prevented the police from investigating the matter, and
fabricated a criminal case against Modong, accusing her of an act of assault during
the investigation. This resulted in her being detained for ten (10) hours. Following
that, on 26th November 2021, Mading sent seven armed police officers from the local
police station together with several civilians to her compound. They forcefully
entered her compound and cut down all the trees, including fruit trees without
permission. Government estimates put the damage at SSP 3,637,133 (equivalent to
USD 10,000).
9. They further state that on 27thNovember 2021, Mading went to the military police
headquarters, returning with about 14 heavily armed soldiers in a Toyota pickup.
The soldiers closed the road adjacent to the Complainants', house. A bulldozer
demolished the concrete wall of Modong's house. The soldiers displaced her family
and warned that they would shoot and kill anyone who returned to the scene.
Mading immediately brought in a civil engineer and wot:~~f"s,al),?2J?~ganerecting a
new wall on the first Complainant's property. The damagttcissesseo by tlie Ministry
of Housing was estimated at SSP 4,002,404(equivalent to USD 11,000).
10. The Complainants aver that following the eviction of the Mod6ng family, the
soldiers remained in her property, and kept the road adjacent to theproperty closed
throughout the night, preventing people l!9m having access to the area.
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11. They submit that on 29 November 2021, their representatives met with Major
General Keer Kiir, the officer commanding the soldiers who occupied her property,
asking him to withdraw his forces; but to no. avail. Also, Modong lodged a
complaint with the Northern Division of the police because the police in her area of
residence were the same perpetrators who cut down her trees and who intimidated
and unlawfully arrested her.
12. The Northern Division of the Police opened 'criminal case number 6105/2021 against
Mading and he was charged with the following offences: intimidation, which carries
a maximum sentence of 7 years' imprisonment; damage to property, which carries a
maximum sentence of l-year imprisonment; and trespassing, which carries a
maximum sentence of14 years' imprisonment. An arrest warrant was issued against
Mading, but tlle'n, the\~rrest could not be executed because he had the soldiers'
backing.
13. The Complainants allege that a Public Prosecutor, Attorney General Kur Aweral
Akol, ordered the withdrawal of the case, on the grounds that Mading already had a
civil matter with Modong's neighbours. The Complainants were shocked by that
decision and filed an appeal. Although the appeal was successful, the police refused
to pursue the case and the soldiers continued to intimidate the Modong family
members.
15. The Complainants
allege that in the wake of the fabricated criminal case against
Modong's Advocate - John Gerry, the Public Prosecutor of the Ministry of Justice
and Constitutional Affairs, RSS/Juba, ordered for the waiving of Advocate John
Gerry's immunity in a letter dated 4th November 2021. The Complainants submit
that the President of the Bar Association admitted to have been under pressure by
armed men from National Security and Military Intelligence who called at his office
on several occasions. Eventually, the President of the Bar Association waived
Advocate John Gerry's immunity, by means of a letter, in order to allow his arrest
for alleged obstruction of justice in the Criminal case against Modong.
16. On 21 December 2021, Advocate John Gerry became aware that pressure had been
exerted for the waiving of his immunity when he went to the police station where
the fabricated case had been opened. Advocate John Gerry was informed that the
police could no longer continue with the case of Modong against Mading, and that
Mading had ordered that he be arrested by the soldiers from South Sudanese
authorities.
17. On the night of the same day, the afore-mentionedsoldiers
abducted Advocate John
Gerry, forced him to get into a Toyota- Pickup with tinted windows. The soldiers
insulted him, and assaulted him by pressing' him hard with a plier, so much that he
sustained a serious wound on his right thumbnail, then they pushed him outside
the car to the ground.
18. Further
to that, on 12 January 2022, while again pursuing Modong's case, the
Advocate was once again attacked by Mading and about 10 soldiers and 12 police
officers from the Lolqgp ,II Police Station on th~,putskirts of Juba. The advocate
averred that he locked himself in his car and refl.tsed to open the door until the
Attorney General was called to take cognizance of the incident. Advocate John
Gerry was then taken to the Lologo II Police Station where he was detained on the
basis of the waiver of immunity letter. Although Mading had given orders not to
release the Advocate, at a hearing the following day the Prosecutor ordered his
release on bail.
19. Thereafter, on 14 January 2022, Advocate John Gerry returned to the Police Station
to ask that Modong's case against Mading be referred to court for trial. The Police
informed Mading that Advocate John Gerry had returned for the Modong case.
Mading rushed to the Police Station with the soldiers and pressed the Prosecutor to
re-arrest Advocate John Gerry. Seeing that the situation was getting worse,
Advocate John Gerry decided to leave the scene. Mading and the South Sudanese
soldiers pursued him, but he managed to escape. Mading and the aforementioned
soldiers went to the Office of the Public Prosecutor and threatened to kill the
Prosecutor for failing to re-arrest Advocate John Gerry. In fear, the Prosecutor
locked herself in her office until she was rescued by the Police.
20. The Complainants
further alleged that on 25 January 2022, Advocate John Gerry
was supposed to travel from Juba airport to Nairobi, but the Immigration Police
arbitrarily detained him at the airport for 4 hours for no reason. A
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Gerry's trip was cancelled and his National Passport confiscated. T~V1Ii~~~~.
informed by Brig. Gen. Aleer Deng, Chief of Staff to the Directqj' ~~f
nona . "I~ o;:~
Passport and Irrunigr.ati0r:' that a tr~vel ban on t~e lav:yer had bee:
by Gen. Atem Marol Mabior, the DIrector of Nationality, Passport ~":til.d~' rn.{~~~t10/(:~ [
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a ban of which was unbeknown to Advocate John Gerry before then. John Gerry
was then compelled to return from the airport to his home without his passport.
21. After leaving the airport, John Gerry received a call from the airport's security to say
that a new criminal case (Criminal Case Number 54/2022) had just been opened
against him and that he should return to the airport to be re-arrested. Regarding
Advocate John Gerry's National Passport, the caller stated that it was INTERPOL
which had issued the travel ban and seized the Passport. The Advocate persevered
and appealed to the Senior Prosecutor, claiming that he enjoyed immunity and that
the South Sudan's Code of Criminal Procedure prohibits the institution of new
criminal proceedings by the same party to an ongoing case.
22. The Complainants further stated that on 27 February 2022, the Senior Prosecutor
ordered that the files for the two cases (Criminal Case Number 376/2021 and
Criminal Case Number 54/2022) be referred to his office to decide whether the
application for withdrawal of the new case should be accepted or whether the two
criminal cases should be considered for joinder. The Lologo II Police Station refused
to execute the Senior Prosecutor's order and insisted on executing the new detention
order. Meanwhile, Mading continued to-intimidate th~:complai'nants. The Advocate
and other complainants were often searched and intimidated, and prevented from
moving freely around Juba.
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23. The Complainants avow that there is no hope of suctesspn the case locally and that
they have looked for local remedies to have their case heardby a competent court,
but found a non-promising procedure and continue to face more violations, due to
unwillingness of the Respondent State to enforce its laws to protect victims of
human rights violations.
Articles alleged to have been violated:
24. The Complainants allege violation of Articles 2, 3, 4, 5, 6, 7, 8, 10(1), 12(1) and (2), 14,
16(1), 18 (1) and (3), 75 and 26 of the African Charter.
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Prayers:
1.
The Complainants prays the Commission to:
• Declare thatthe Respondent State violated her Rights as provided in Articles 2, 3,
4, 5, 6, 7, 8, 10(1), 12(1) and (2), 14, 16(1), 18 (1) and (3), 25 and 26 of the African
Charter;
• Order the Respondent State to remedy the situation, including compensation,
review of legislation, and training of police officers;
• Order the Respondent State to do the following:
1)
pay USD 300,000 to the advocate as compensation for material and moral
damages;
2)
pay USD150,000 to Rose Modong Samuel, Isaac Jugar, Hellen Ojaba and
their 4 children as compensation for material and moral damages;
3)
pay USD21,000 USD to Madong as compensation for material and moral
damages arising from the destruction of the wall on thei ",. 0'e1f . nd
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shop, and the loss of farm produce;
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order the return of the land seized by Mading Ngo~_;A,f~, 'i.~~l
number 69, Block A III, Lologo;
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hold the perpetrators of the violations accountable, namely Mading Ngor
Akec, Gen. Keer Kiir, Gen. Atem Marol Mabior, Brigadier-General Aleer
Deng, and the Joint Operational Command, Sector I, and the Police Unit
at Lologo II;
6)
order appropriate, effective and immediate long-term measures to protect
the complainants/victims, and to ensure that human rights violations do
not happen again;
7)
order appropriate, effective and immediate measures
dispossessing soldiers of civilian land, and strongly
participation in similar incidents;
8)
provide appropriate, effective and immediate education and training to
soldiers, the police, including officers and commande,[s, on the African
Charter and state obligations, their profes$iQpal dutY"to protect human
rights and prevent human rights violations in S04th Sudan;
9)
any other remedies or measures that the Commission may recommend or
decide upon;
10)
restore the Complainants' lawyer to his original state by immediately and
permanently lifting the travel ban imposed by the Director General of
Nationality, Passport and Immigration,
11)
restore the Complainants' lawyer: his Passportfrom
of Nationality, Passport and Immigration; and
12)
incorporate in its Constitution:
a. Provisions for court to e' srce the Bill~l'()fRights
through various writs, su
s habeas corpus, mandamus and certiorari;
b. Provision allowing individuals to apply to court directly for these writs
to enforce their constitutional rights and award compensation, in an
independent, easy and effective procedure and in a shortest period
possible.
aimed at
punishing
the Director General
f
Procedure:
25. The Secretari~:t'receivecl'~'ft,he
Complaint on 11 th May 2022, acknowledged receipt
thereof on 27thJune 2022, analyzed it in accordance with Rule 115(5) of the Rules
of Procedure 2020 of the Commission, and decided to be seized of it.
26. On 9th August 2022, the Secretariat informed the parties of the Seizure Decision,
by transmitting it by a letter and Note Verbal, respectively, to both. The letter
requested the Complainants to submit their arguments and evidence on the
Admissibility and Merits, within sixty (60) days, in accordance with Rule 116 (1)
of the Commission's Rules of Procedure 2020. The Note Verbal informed the
Respondent State that the Complainants have been requested to forward his
written submissions on the Admissibility and Merits of the matter.
77lh
Ordinary Session of the ACHPR
28. The Secretariat acknowledged receipt of the Complainants' Submissions by a
letter dated 12thSeptember 2022,which also informed them that their Submissions
would be transmitted to the Respondent State for its observations. The Secretariat
forwarded the Submissions by a Note Verbal of the same date, to the Respondent
State, and requested the latter to forward its observations on the said Submissions
within sixty (60) days of receipt of the Submissions, in accordance with Rule
116(2) of the Rules of Procedure 2020.
29. The Commission considered the Provisional Measures request at its 73rd Ordinary
Session, and decided not to grant it.
30. At its 75thOrdinary Session held from 3 to 23 May 2023 in Banjul, The Gambia, the
Commission declared the Communication admissible. This decision was forwarded
to the parties respectively on 7 June 2023 by a letter and Note Verbal dated 5 June
2023. The Note Verbale again requested the latter to submit its observations within
thirty (30) days of receipt of the notification.
The Law on Admissibility
Complainants' Submission on Admissibility
31. The Complainants submit that the Communication satisfies all the criteria for
admissibility under Article 56(1), (2), (3), (6) and (7) ofthe African Charter.
32. They put forward that although the Communication mentions mostly an
individual's name - Mading, who is the instigator of the events, the actions
complained against are those perpetuated by the law enforcement institutions and
agents of the Respondent State, particularly the Military Police acting under the
instruction of their Commanders.
33. The Complainants' arguments center mostly on Article 56(5) of the African Charter on exhaustion of local r~medies. Th~ Complainants re-iterate the steps they have
taken at domestic level, stated at paragraphs 8 - 24 above, and assure that they
attempted to exhaust all local remedies available in the Respondent State but that
local judicial remedies are. unavailable, ineffective and insufficient and that every
attempt to access them was blocked by the Military Police, and therefore cannot be
accessed freely.
34. The Complainants also submit that although the Media had reported that a
Presidential Order was issued that called every soldier being used as
bodyguards to return to barracks, a huge number of the Military Police continue
to guard Mading at the illegally possessed properties in Lologo II and continue
to be deployed to intimidate the complainants and block their case at all levels.
36. The Complainants
submit that each of these authorities has the legal obligation
and constitutional mandate to stop the human rights violations, and the
competence to issue legal advice and orders for the investigation of the Police
and the soldiers, including the commanders, but none of them acted positively.
Instead, the Undersecretary of the Ministry of Justice, who is the Chief Civil
Administrator of the Ministry, bluntly told the Complainants verbatim that
"there is nothing the Ministry of Justice can do in that case".
37. They added that the reason they resorted to reintroducing their petition at
another Police Division - the police at the Northern Division, which was aside
from the one within their area of residence was because they saw no prospect of
success in relying on the authorities to move their complaints forward to the
highest levels as they should. However, the Northern Police Division could only
open a criminal case with number 6105/2021 against Mading, due to the fact that
any criminal case against the unit of the joint og~.ri~tionforce, in Lologo II or the
military police would require waiver of immunit)/6f those forces or the approval
of the Inspector General of the Police and that of the Chief of Defense Forces or
the President of the Republic.
38. The Complainants further submit that their lawyer was abducted, tortured and
abused on December 21, 2021, arbitrarilyjarrested anclJrreatened with death on
12 January 2022, also attacked on 14 january 2022, but-managed to escape, and,
again, arbitrarily arrested, handed a travel ban and had his passport unlawfully
seized on 25 January '~JJ2~. The same soldiers and other officers coerced the
Chairperson of the South Sudan Bar Association to violate the rights of the
lawyer to an independent bar association and due process of law, they also
attacked and threatened to kill the prosecutor in Lologo II.
39. They fear that a third fabricated case could follow with another wave of serious
violat!081.1~
of human r~g,Q!sif the Complainants insist on attempting to exhaust
the difficult local remedy process; They allege that every CID police in Lologo II
moves with an illegally photocopied warrant of arrest indicating the arrest of the
lawyer and others
by
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law enforcement, and that they have continued to
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suffer inhumane treatments as a result of grave misconduct and the violence
deployed by the illegal and disproportionate use of force against them by the
military police and the joint operation force in Lologo II. Consequently, Modong
and other complainants have had to flee the area, taking refuge in Uganda.
40. The Complainants posit that Article 151 (6) and Article 152 (c) of the Transitional
Constitution of the Republic of South Sudan state that "the national armed forces
shall respect and abide by the rule of law and respect the will of the people, the
civilian authority, democracy, basic human rights and fundamental freedoms ..."
and that the national armed forces shall not be used as an instrument of physical
intimidation of the civilian population."
77th
Ordinary Session of the ACHPR
Article 155 (6) of the said Constitution states that the police shall respect the will
of the people, the rule of law and order, civilian authority, democracy, human
rights, fundamental freedoms and execute judicial orders. These constitutional
duties, as domestic laws dictate, are vested on the Minister of Interior and the
Inspector General of Police. He is to train, monitor, investigate, discipline and
produce for prosecution violators among the police force.
42. They aver that the Inspector General of Police has the powers to convene a police
court (also, the powers to cause the investigation of police personnel) and the
powers to refer criminal cases, involving police, to court (Section 52 & 54 of the
Police Act, 2009). He also, has the powers to terminate any legal proceedings
against any police personnel, mero motu, and the decision shall be final and
binding (Section 61 of the Police Act).
43. The Complainants tender that they have no option that allows them to approach
the court directly. Victims of human rights violations 'll~;ye,nQi*~pnstitll!ional
right to approach the Court to expedite the investigation or force referral to of
their cases to court. The powers to approach the Court are vested on the
Minister of Interior and the Inspector General of Police; and thE;,units of the
forces enjoy general immunities and limitations on liability (Section 51 of the
Police Act). Any legal proceedingagainst a police or soldier on duty is subject to
approval of their head of commands £8£,c,theirimmunity to be lifted, which
approval rarely happens especially when the case involves many numbers of
soldiers or police or a General of police or of the army, because of vicarious
liability, particularly if the comBla,int is from'
i,vilian. Both in precedent,
procedure and practice, the laws of South Sudan are devoid of the right of writ
of mandamus. As a result, there are appalling human rights cases impossible to
reach the court.
44. In addition to these, the Transitional Constitution of South Sudan does not have
provis~q!1sfor the effective enforcement of the Bills of Rights; the Constitutional
provision in Article 9 (4)~;on the jurisdiction of the Supreme Court to uphold the
Bills of Rights,is shallow and weak in enforcing the Bills of Rights, as it does not
have provisionsfor courts to enforce the Bills of Rights through various writs,
such as mandamus and 'certiorari or any provision allowing individuals to apply
to the courts for these writs to enforce their constitutional rights. Also, there is no
effective constitutional supervisory jurisdiction on the courts to compel the
Executive branc~lto adhere to the constitution including, compelling the Military
Police to respect the rule of law and the police to adhere to the constitution and
the international standards of police and allow quick access to justice for the
victims.
ri» Ordinary Session of the ACHPR
46. The Complainants aver that the judiciary is ineffective and not independent,
particularly the Supreme Court which is vested with the jurisdiction in a
constitutional remedy. Also, the Constitutional remedy in Article 306, which a
civil remedy, cannot effectively address a case of a criminal nature which can
only be determined after completion of a criminal investigation by the same
police. Thus, the whole process of determining the final outcome of the case lies
with the police.
47. The Complainants opine that the Commission's Decision in Communication
275/2003- Article 19 v Eritrea, applies to this case. In that Decision, the Commission
settled that "Whenever there is a crime that can be investigated and prosecuted by the State
on its own initiative, the State has the obligation to move the criminal process forward to its
ultimate conclusion. In such cases, one cannot demand that the Complainants, or the victims
or their family members assume the task of exhausting domestic remedies when it is up to the
State to investigate the facts and bring the accused persons to court in accordance with both
domestic and international fair trial standard").
48. The Complainants submit that the actions of the Police against them contradicts
Article 155 (6) of the Transitional Constitution of South Sudan :MfNchamong
others provides that "the police shall ... respect+th~ rule of law and 'order, civilian
authority, democracy, human rights, fundamental freedoms .... "; and Section 6 (2) of
the South Sudan's Police Act which prov-ides that "The Police Service shall be a
regular service with the primary responsibility of .. implementing the law, in full
neutralibj and honestu and adherence to the law, national and international standards".
49. They posit that international standards require police accountability, a proper
complaints system that is easily accessible to the public, that can effectively
investigate allegations, recommend disciplinary sanctions or refer cases for
criminal prosecution, and effective complaint IS procedures with guarantee of
easy court access, effective supervision, accountability, adherence to the rule of
law, and the principle
necessity and legality.
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50. The Complainants proffer thatSouth Sudan Police is held, like those of other
nations, to the same standard in compliance with the Code of Conduct for Law
Enforcement Officials adopted by General Assembly resolution 34/169 of 17
December 1979, and the Declaration on the Protection of All Persons from Being
Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment Adopted by General Assembly resolution 3452 (XXX)of 9/12/1975.
The Declaration states that "Wherever there is reasonable ground to believe that
an act of torture as defined in article 1 has been committed, the competent
authorities of the State concerned shall promptly proceed to an impartial
investigation even if there has been no formal complaint".
I Communication
77th
275/2003- Article 19 v Eritrea (ACHPR 2007), para 72
Ordinary Session of the ACHPR
9
there is an accusation or well-grounded reason to believe that an act of torture
has been committed."
52. The Complainants argue that in South Sudan, there is no effective system for
accountability that can promptly prevent the police from misusing their powers
and holding them responsible for misusing such powers against civilians. The
policing system has failed to discourage police misconduct against the
complainants as they are aware there is no accountability. There is no promising
procedure that a civilian can pursue to find justice for police misconduct.
53. They dirge that they have no prospects of the case going further given the
shocking level of impunity that the perpetrators enjoy, to the extent of going free
even after attacking the Lologo II police station and threatening to kill a Public
Prosecutor on 14/01/2022. They aver that the law enforcement in Lologo II and
the military police impeded the administration of justice and rendered the
criminal justice system dysfunctional, thereby. ITlCl.king
al] attempts to exhaust
local remedy impossible and met with further":Kuinan rights violations. The
Respondent State was made aware of the violations through appropriate
complaint procedures and that the Respondent.State bad the ample.oRPortunity
to address the violations as it exercises unlimited.,control and supe~vision over
the Forces, but did not do so.
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54. They appeal to the Commission's longstanding precedent which find that a
remedy is considered available if the petitioner can pursue it without
impediment, and that it-is deemed.effective if it otters a prospect of success, and
it is found sufficient if it is capable of redressing
complaints; they aver that
this and the exception of Article 56(5) are applicable to this Communication.
They urge the Commission, in analyzing these situations and the question of
effectiveness and availability of local remedy, to also consider the general
situation in South Sudan and refer to its past resolutions on the human rights
situation in South Sudan and to declare the Communication admissible.
the
Respondent State's Submission on Admissibility
55. The Secretariat.did no.t::¥~cei:ve
any observation or any correspondence on the
Complainants' Submissions, from the Respondent State on Admissibility.
Commission's Analysis on Admissibility
56. The Commission is not deterred from considering the issue of the admissibility
of a Communication, where a State has failed to make its submissions. In such a
situation the Commission will proceed based on the information or any material
pertaining to the Communication and/ or submissions by the Complainant.? In
this regard the Commission will consider and determine whether on the material
before it, the Complaint is admissible or not.
other than from States Parties. Article 56 of the African Charter provides that the
admissibility of a communication submitted pursuant to Article 55 is subject to
seven (7)conditions.
58. The Complainants have argued that this Communication satisfies the admissibility
conditions set out in Article 56 of the African Charter and as such, the
communication should be declared admissible. The Commission upholds
cumulative application of the conditions laid down in Article 56, meaning that if any
one of the conditions is absent, the communication will be declared inadmissible.
59. Article 56(1) of the African Charter states that Communications received by the
Commission should 'indicate their authors even if the latter requests anonymity'. In
the present case the alleged victims are Rose ModongSamuel. Isaac Jugar,
Hellen Ojaba and John Gerry who is also the authorand legal representative of
the complainants in this case and whose full details are provided in the
complaint. Thus, the Commission holds that the ~Qmmul'l~c~,ti9nC'§q~pF~~
~ith
the requirement under Article 56(1) of the African Charter.'
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60. The second requirement under Article 56(2) of the African Gllarter
is that
~~th~
Communications should be compatible with the Constitutive Act O'FtheAfrican
Union (the Constitutive Act) or with the African Charter.
t,
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61. The Commission stated in Law Society' of Zimbabwe ~ Zimbabwe 3 that the
compatibility of a Communication with the Constitutive Act of the African Union is
based on its compatibility with tq~.9.bjectives anQ:Rrinciples enshrined in the Act,
and more specifically on whether the requests in;lhe Communication would not
contravene the objectives or principles expressed in the Act. In this regard, the
Commission notes that neither the me{}Hs",
nor the requests contained in the
Communication violate any of the principles adopted under the Constitutive Act of
the African Union.
62. The Q~mpatibility with the African charter has been interpreted- by the
Commission to mean that:
1.
The Cwnmunic,ation should be brought against a State party to the African
Charter;
, , '(::':,
11.
The Communication must allege prima facie violations of rights protected by
the African Charter; and
iii. The Communication should be brought in respect of violations that occurred
after [the] State's ratification of the African Charter, or where violations
began before the State Party ratified the African Charter, have continued even
after such ratification.
i
~O"'HUM~'~,
63. The Complainants in this Communication allege that the rights
~<t~EiTr\~/1;~.
the following Articles of the African Charter have been viol, ~d
'.e
«c..;
Respondent State: Articles 2, 3, 4, 5, 6, 7, ~, 10(1): 12(1) and (2), 1 ,~6( I , 1("
and (3), 25 and 26, and supports the allegations WIth relevant docu -::.
nts socl:e-Of
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~
which emanate from the Institutions of the Respondent State.
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321/2006 - Law Society of Zimbabwe et al vi Zimbabwe (ACHPR 2013), para 67.
'''''''_... _.-.
4 Communication 266/03: Kevin Mgwanga Gunme et al v Cameroon, (ACHPR 2009), paras 68, 71-72,
77lh Ordinary Session of the ACHPR
11
3 Communication
~,
~
64. The Commission notes that the allegations in this Communication are specific and
establish a prima facie violation of the above listed rights and freedoms enshrined in
the African Charter. It also notes that the Communication has been brought by
citizens of a State Party who are rights holders within it and against a State Party to
the African Charter in respect of violations that allegedly occurred within the
territory of the Respondent State, the Republic of South Sudan. With regards to the
ratione temporis condition, the Commission note that the alleged violations started in
2021, while the State of South Sudan ratified the African Charter in 2013. The
Commission therefore holds that this Communication complies with Article 56(2) of
the African Charter.
65. Article 56(3) of the African Charter provides that Communications should not be
written in disparaging or insulting language directed against the State concerned
and its institutions or to the AU. In Zimbabwe Lawyers for Human Rights &
Associated Newspapers v Zimbabwe', the Commission described disparaging or
insulting language as one not aimed at "unla7,VfY:J,l,yand intentionqlly violating the
dignity, reputation or integrity of a judicial officer~o¢%ody" and not" used in a manner
calculated to... cast aspersions on and weaken public confidence on the administration of
justice".
,.
66. In this Communication, the Commission observes that the language of the
Complainants in their submissions in the prese:p.~ Communication are not
disparaging or insulting. The Commission therefore holds ,that this Communication
complies with the requirement under Article 56(3) of the African Charter.
67. Article 56(4) of the African Charter provides that Communications should not be
based exclusively on news disseminated through the mass media. The
Complainants' submissions were found to be based on Judicial records, not on news
disseminated by the mass media. Accordingly, the Commission is of the view that
the Communication complies with Article 56(4) of the African Charter.
68. Article 56(5) of the AfiiEcirtCharter'provides that Communications should be 'sent
after exhausting local remedies, if any, unless it is obvious that this procedure is unduly
prolonged'.
The Complainants aver that they made all efforts to exhaust local remedies but that
local remedies were unavailable, ineffective, and insufficient.
69. The rationale behind the exhaustion of local remedies is that States should be given
an opportunity to address the issue before the matter is brought before international
treaty bodies. In Free Legal Assistance Group and Others v Zaire6 and Recontre
Africaine pour la Defense des Droits de I'Homme v Zambia? the Commission stated
that the requirement of exhaustion of local remedies is founded on the principle that
a government should have notice of human rights violation in order to have the
opportunity to remedy such violations before being called before an international
body.
70. Such an opportunity will enable the respondent State to save its reputation, which
would be unavoidably smeared if it were brought before an international
jurisdiction. To the extent possible, an international tribunal, such as the
Commission, should be prevented from playing the role of a court of first instance.
Access to an international organ should be available, but only as a last resort; after
the domestic remedies have been exhausted and have failed.
71. In Interights, Institute for Human Rights and Development in Africa, and
Association mauritanienne des droits de l'Homme v Mauritania", the Commission
stated that local remedies are "the ordinanj remedies of common law that exist in
jurisdictions and normally accessible to people seeking justice". In Cudjoe v Chana", the
Commission stated that local remedies applied to "courts oj'a judicial nature".
72. In stating that the Commission shall consider a Communication after the applicant
has exhausted local remedies, "if any, unless iti:i,s obvious that-this procedure is
unduly prolonged", the African Charter recognis~s that, although the requirement
of exhaustion of local remedies is a conventional provision, it should not constitute
an unjustifiable impediment to access to international remedies. Ihe Commission
has also held that Article 56(5) "must be applied concomitantly with Article 7, which
establishes and protects the right to fair tJ;ial"lo.
73. In interpreting the rule, the Commissio;lgiyes the impression that it takes into
consideration the circumstances of each case, including the general context in which
the formal remedies operate and",the personal drfgmstances of the applicant. Its
interpretation of the local remedies criteri[ion] 2~ri'therefore not be understood
without some knowledge of that general context.
74. Therefore, the submissions by the Complainants in this case outlined in paragraphs
32 - 47 above, would be assessed considering the above-mentioned interpretations
of the .Commission. in respect of the provisions of Article 56(5) of the African
Chart~f:
"
75. The Commission notes that the Complainants have made written complaints to the
Office of the Inspectoi G~heral of the Police of the Respondent State, to investigate
the matter and produce- the perpetrators in Court. The Commission also note that
the Complainants seized the Minister of land and housing, the Undersecretary of
the Ministry of'[ustice, and the Head of Public Prosecution in the Central Equatorial
State each of which had authority, legal obligation and constitutional mandate to
stop the human rights violations.
77. The Commission further notes the Complainants' submission that when they could
not obtain redress, they had proceeded to re-lodge the case again against Mading at
another Police Division - the Northern Division, but their case was dismissed.
However, they had succeeded in an Appeal but the legal process of proceeding
further with the case was stalled by Mading's Military Police allies. The
Commission further notes that the Complainants were forced to eventually flee
from the Respondent State to seek refuge in Uganda, due to continuous intimidation
with arrests, blackmailing through fabricated criminal cases and physical attacks
and death threats. In this regard, the Commission maintains its reasoning in Article
19 v. Eritrea--, to which the Complainants had alluded.
78. The Commission recalls that in Jawara v Gambiat-, it had recognized a certain level
of flexibility to the application of the rule of exhaustion' of local remedies and held
that complainants are expected to exhaust local remedies onlyin so far as these
remedies are available, effective and sufficient. The Commission further expounded
on this by stating that "a remedy is consideredaoqilable ij.the, petit~!it!J:,r.can pursue it
without impediment, it is deemed effective if it offers a prospect Of success; and it is found
sufficient if it is capable of redressing the complaint'?",
'\~~.• ,'
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"
.'
79. The Commission notes the reasons advanced by the Complainants) in view of the
above, as to why they believe domestic or local remedies are unavailable, ineffective
and insufficient, namely:
.,;"
(i) that the Complainants encountered blockage of the legal proceedings;
(ii) that they could not approach the Courts dires,~lydue to Section 5 of the Police
Act which limits the liability of the Police, and tha't the units of the Armed forces
who perpetrated the violations enjoy- general immunities as a result of which
legal proceedings against them is suqject to approval of their superiors, who
were unwilling to grant such approval; " \
(iii) that the Transitional Constitution of the Respondent State lacks provisions such
as mandamus and certiorari, to enable individuals to apply to the Courts to
enforce their Constitutional rights; and
(iv) that the Constitutional remedy provided for in Article 306 of the Constitution is
a civil remedyand'C:fpnot effectively address a case of criminal nature which can
only be det~rrnined;:aH'ercompletion of a criminal investigation by the Police, of
which the Complainants complain had blocked the case.
80. It is undeniable' that local remedies are considered available if they can be pursued
without impediments, whether practical or legal in nature as stipulated in Human
Rights Council and Others v. Ethiopiat+, where the Commission stated that:
" ... there must exist relevant substantive and procedural laws, and competent institutions
or organs and processes which a complainant can access and utilize in practice without
unjustifiable impediments".
II Ibidem,
para 46
12 Communication
IoU
a
147/95-149/96 - Sir Dawda K. Jawara v Gambia (The), (ACHP
:x;
-
f! ~I
81. In relation to the above-mentioned arguments by the Complainants, the
Commission finds substantive evidence that supports the Complainants' allegations
that they are unable to pursue their case to the apex domestic Courts and that the
blockages constitute prima facie evidence to demonstrate the inability of local courts
to guarantee the Complainant fair trial processes.
82. The Commission took a similar stance in Zegveld &Amp; Anor v. Eritrea'>. In that
communication, the Commission was of the view that the Respondent State's denial
of access to the remedies under domestic law to the detainees, had prevented the
complainants from exhausting local remedies.
83. In Haregewoin Gabre-Selassie and IHRDA16, the Commission stated that the
exception to the rule on the exhaustion of domestic remedies would apply where
the domestic situation of the State does not afford due process of law for the
protection of the right or rights that have allegedly been violated. In that
Communication, the Commission deduced that.r'the victims could .not access the
courts to claim protection of their rights, either because they have been displaced, or
because they are being harassed, intimidated and persecuted and that the
prevalence of violence in the region makes any attempt at exhausting local remedies
by the victims an affront to common sense, goodconscience and justice."17
84. The above-mentioned case is similar in the 'present Communication. The
Commission opines that the blockages, arrests and denial-of access by institutions
and functionaries of the Respondent State prevented, the Complainants from
exhausting local remedies and, therefore makes those remedies unavailable,
ineffective and insufficien't and thus exempt the Complainants from the obligation
to exhaust local judicial remedies.
85. For the above reasons, the Commission finds that this Communication complies
with Article 56(5) of the African Charter.
86. Article 56(6) of the African Charter provides that a Communication must be
submitted ' ... within a reasonable period from the time local remedies are exhausted or from
the date the Commission is seized of the matter'.
87. This requirement has been linked with the principle of the exhaustion of local
remedies stipulated in Article 56(5) - the Commission estimates the timeliness of a
Communication from the date that the last available local remedy is exhausted by
the Complainantlf and thus adopts the six months time line specified Article 46(1(b)
of the American Convention on Human Rights, and in Article 35(1) of the European
Convention on Human Rights. The Commission, drawing inspiration from the
Inter-American and European systems, decided in the case.of Majuru v. Zimbabwe
that a period of six months seem to be the "usual standard".
88. The Commission notes that the last attempt by the Complainants to pursue
available local remedy in the Respondent State was on 14 January 2022, and that the
Commission was seized of the complaint on 11 May 2022, a period of four months,
which conforms with the international standard of a "reasonable time". The
Commission therefore finds that the Complainants seized the Commission within a
reasonable time from when they realized that local remedies are unavailable or
ineffective, and that consequently, the requirement of Article 56(6) of the African
Charter has been met.
89. Article 56(7) of the African Charter provides for the requirement that a
Communication must not be considered if it has already been settled in accordance
with the principles of the African Charter of the United Nations, the AU
Constitutive Act, or the African Charter.
90. The Complainants submit that this Communication meets this requirement. The
Commission has not found any evidence to suggftstthe contrary, ~p. consequently,
holds that the Complainants' Communication complies with the requirement under
Article 56(7) of the African Charter.
91. The Commission therefore declared the Communication admissible.
Merits
The Complainants' submissions on th~:Merits
Alleged violation of Articles 2 and 3 of the Afrjcan Charter
92. The Complainants allege violation of the rights to non-discrimination (Article 2) and
equal protection (Article~~)under the African Charter.
93. The Complainants submit that they had suffered discrimination on the basis of their
ethnic group. They st<;l-tedthat they hail from the minority tribe of KUKU, in a
territory known"as KajoKeji;in the far South of the country, and that people from the
KUKU tribe are very few in the capital City Juba and underrepresented in all the 3
branches of the government, the national army and the police.
94. They also state that when their house was raided by the military police, no senior
authority that they had approached in the army or the police showed interest to stop
the violations, others declined to hear a case against a member of their tribe. They
aver notwithstanding that the Juba area was the only diversely inhabited area in
South Sudan that they suffered a terrible ethnic based discrimination due to the
arbitrariness and brutal misconduct of law enforcement, which seemed like never
going to stop without the Complainants fleeing for safety.
O.. t-IUM~~
95. The complainants further submit that discrimination is interpre ~ O\~c!E~~
,
equal protection of the law or equal rights or enjoyment to a per, "or
o.£.
a&>
authority. They aver that while the perpetrators enjoy maxim : pr'te<t~i\of
lw
national laws, they (the complainants) are ethnically discrimiri _eg gah1st~y ~ ~'f
Respondent State through its agents, by being denied equal pr·. ~c~
otltf-i~ f#.eron. '
C,I~
77th
Ordinary Session of the ACHPR
..
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national laws, despite the known fact that the victims are from a minority tribe that
is particularly vulnerable due to their underrepresentation in the law enforcement
and the security sectors.
96. Lastly, they argue that this discriminatory treatment by the Respondent State has
left them without any protection of their life and property and from being made
homeless. They submit that these actions of the Respondent State constitute
violations of Article 14 of the Constitution of South Sudan and violations of Article 2
& 3 (1) and (2) of the African Charter.
Alleged violation of Article 4 of the African Charter - respect for life and integrity of
the person
97. The Complainants submit that the sudden raid carried out in their house early in the
morning with 14 heavily armed soldiers in a combat-like situation is a grave
disrespect of human dignity. They add that their very yO~.l}gchildr~,~ from ages 2 to
8, a pregnant woman and an elderly woman diagnosed~fwith'''nype'rtens;i2n'were
raided in an aggressive military style and forced out of their lawful ho:rrie~into the
streets without any reason. Military . police strictly deal with the. army or other
criminal situations that the police cannot maintain. They are traditicinally aggressive
due to their nature of duty in handling uncontrollable or undisciplined soldiers. The
military police unleashed similar tactics and behavior on the Complainants, who are
civilians, in a similar way they handle uri~~ntrollable soldiers.
.
98. The Complainants aver that such an extreme ill-treatment on civilians has the
highest potential of causing sudden death to an)/~lderly woman with a preexisting
medical condition, a woman in her late pregnancy or the children, due to the
dangerous effect of the military raid. Similarly, the actions have a long-term distress
and terrible impact in the life and development of the children and the other
Complainants.
.
99. They further adduce that South Sudan laws set procedures for eviction, including
court p~ocedures that involve getting not less than I-month eviction notice, if the
complainants are unlawful occupants of the land (Section 85 of South Sudan Land
Act, 2009). Artiqle 152, 'eto£ the Constitution states that the national armed forces
shall not be used a~ :arl instrument of physical intimidation of the civilian
populations. They aver that the actions of the military police were unlawful,
extreme and h<:}dthe potential of causing death to the pregnant woman, the unborn
child, the eldeHy woman with the hypertension and the young children and
therefore constitute a violation of Article 4 of the Charter.
Alleged violation of Article 5 - right to respect of the human dignity
101.
17
102. They further submit that pressing the thumb of the lawyer severely with a plier
with an intend to intimidate the lawyer and force him to refrain from legal practice
and legal representation and the silence and refusals of the Respondent State to hold
the known perpetrators accountable violates Article 11 of the Constitution of South
Sudan (the right to dignity and integrity of persons), and Article 18 (freedom from
torture) and constitute a violation of Article 5 of the Charter which prohibits torture,
cruel and inhuman treatment of human beings.
Alleged violation of the right to personal liberty (Article 6)
103. The Complainants submit that the arrest of the lawyer on 21/12/2021, in which
he was tortured, was carried out by the soldiers from the military police that was
given to Mading, possibly through his instructions. Also, the arrest on 12/1/2022
was carried by the over 12 military police. Both arrests were 'arbitrary and were
made randomly, without adherence to the rule of law. The military police, in line
with their duties, do not have the constitutional powers to come into contact with a
civilian. They are only lawfully mandated to exercise policing powers over the
military personnel, to instill discipline in the army. Lawyers are not soldiers, nor are
the Complainants. Thus, their actions are unlawful and criminal.
104. They also state that the detention by the police thr~ugh the letter of waiver of the
immunity was unlawful because the procedures t~R:eri:,
were in violation of the
independence of the bar association and the rights of a practicing advocate who is
an ex officio member of the court. So also, was the arrest at the airport because the
lawyer was not informed of the reason for the arrest during the time of the arrest
and the lawyer was not made aware Of any charges. After spending several hours
under detention in the airport, the lawyer was allowed to leave the airport, but he
was called on phone and asked to report back to the airport because a new criminal
case was opened against him, which is the second criminal case that is being opened
before a commission of any offence "and his passport was seized. They aver that
these arrests and the unreasonable 'force used to effect the arrest are arbitrary,
extreme and unlawful, and that the seizure of the passport constitutes a continuing
arbitrary detention and violate Article 6 of the Charter.
Alleged violation of the right to have one's cause heard (Article 7)
105. The Complainants submit that the Respondent State denied them the right to be
heard, contrary to the Constitution of the Republic of South Sudan.'? They contend
that their struggles to legally push for the criminal case number 6105/2021, with the
charges 245, 315 & 329, which was opened since 29 November 2021 by the
complainants against Mading Ngor, including getting an order from the Senior
Public Prosecutor to have their cause heard by a competent court were all stifled
and repressed by the Respondent State and its agents, including the police and the
military police. They allege that this constitutes a prima facie violation of Article 7
(1) of the African Charter.
106. They further submit that the Respondent State also violated Section 25 of the
South Sudan Penal Code, 2008 (on prohibition of initiation of criminal case based on
acts done by person bound or justified by law) by allowing the perpetrators to open
a fabricated case, based on unfounded allegations and state that the Constitution
also provides that "no person shall be charged with any act or omission which did
not constitute an offence at the time of its commission" (Article 19 (5) of the
Constitution). They submit that the demolition of the house, the seizure of the
passport and the travel restriction are arbitrary condemnation and punishment not
authorized by law and not declared by the judiciary in a fair trial and therefore
violates Article 7 (2) of the Charter.
107. They support their claims by referencing the Commission's Principles &
Guidelines on a Fair Trial & Legal Assistance in Africa, which states that: "States
must ensure, through adoption of national legislation, that in regard to human
rights violations, which are matters of. .public concern, any :individual, group of
individuals or nongovernmental organization is entitled to bring "an issue before
judicial bodies for determination". "They aver that the torture, the abuse, the
arbitrary arrests, the seizure of the 'passport, the restriction of the freedom of
movement and the prevention of the cases from progressing to court for trial are a
substantial denial of:
1- The right to be presumed innocent until proved guilty by a competent court;
2- The right to defense, including the right to be defended by counsel of their
choice and;
. .,
.
3- The right to be tried within a reasonable time by an impartial court or tribunal.
.\.l~; co,
•
Alleged violation of the right to freedom of Conscience and the right to freedom of
association (Articles 8 and 10)
108. The Complainants aver that the Respondent State violates Article 136 (1) of the
Constitution of South Sudan which states that" advocacy is an independent private
legal profession", and thatitviolates the rights of Advocate John Gerry as a member
of an independ;~nt Bar Assotiation by denying him due process of the law, because
when the letter was sent by the Director of Public Prosecution on 4/11/2021 to the
Bar Association concerning criminal proceedings against Advocate John Kiri under
Section 48/223 of the Penal Code, the letter for the waiver of the immunity was
granted under dilress, and unlawfully used against Advocate John Gerry, instead of
the person of Advocate John Kiri.
77th Ordinary Session of the ACHPR
19
absence and without the consent of the Secretary. They aver that by acting that way,
the Respondent State has interfered with the freedom of association of the South
Sudan Bar Association and has violated the rights of the lawyer to freedom of
profession, as well as Section 43 (2) of the Advocates Act, 2013 on the independence
of the Bar Association and thus, an assault on the right to free association, the
independence of the bar and the freedom of profession and violate Article 8 and 10
of the Charter.
111.
The Complainants support their submission in this regard by referring to
The Principles and Guidelines on the Right fair Trial which and legal assistance
in Africa, which states that:
'Governments shall ensure that lawyers: (a) are able to perform all of their
profession functions without intimidation, hindrance, harassment or
improper interference; (b) are able to travel and to consult with their
clients freely both within their own country and abroad; and (c) shall not
suffer, or be threatened with, prosecution or administrative, economic or
other sanctions for any action taken in accordance with recognized
professional duties, standards and ethics. C;harges'~~,.complaints made
against lawyers in their professional capacity shall be processed
expeditiously and fairly under appropriate procedures. Lawyers shall
have the right to a fair hearing, including the right to be assisted by a
lawyer of their choice. Disciplinary proceedings against lawyers shall be
brought before an impartial disciplinary, committee established by the
legal profession, before an independent statutory authority, or before a
court, and shall be subject to an independent judicial review".
Alleged violation of the right to freedo~:'l'~fmoveme~;t and residence and the right to
leave any country including his own and to return to his country (Article 12(1) and (2»
112. The Complainants submit that they are being forced to remain in hiding, to
avoid further abuses by the police and the soldiers, as their land is being occupied
by the soldiers, and they could not even visit it since the violent raid on 27/11/2021.
The passport of the complainants' lawyer was confiscated without a Court Order
contrary to Section.Iz (4) of the Passport & Immigration Act, 2011, which states that
Directorat~ may;'at aily!tIme, cancel or refuse to issue an Ordinary Passport if it is
approved that- (a) The applicant or holder thereof provided false information in
the application; or (b) the holder has renounced his or her South Sudanese
Nationality. Thecondition is that, it must be approved in a final court process and
order, issued in)a fair trial, if it is ascertained that the applicant has provided false
information in the application for new passport or has renounced his South
Sudanese nationality.
~ ON HU41
'
113. They state that in this case, the complainants' lawyer (a) is no
W~gef~.tA.R
passport. He has a valid passport that is issued by the author it l8td
~s if f~
its intended legal purpose, including several travels abroad; (~~~s ot!'~You ced.
or abundant his South Sudanese nationality. Thus, the unila\~al
eci~ion--of pe'
Director in conf.iscat~ng the passport .is illegal un~er the S~utFt;(~':ldanl1.la
',/'of
Passport & Immigration, and the ongomg year-old Illegal travei.:b~n~.0nstr
ates
a
" t.
'L":.·.{ \)\.
.ccontinuing arbitrary detention and a continuing restriction of mov$lent, because
the Complainant is being held in one location without his consent.
'
77tll
Ordinary Session of the ACHPR
20
114. They reference Section 16 (a) of the South Sudanese Passport & Immigration Act
which provides that, "South Sudanese Nationals and aliens holding non-Diplomatic
Passports may not be allowed to depart South Sudan if such person has been
formally charged with a criminal offence that has not yet been cleared before the
courts." They argue that the law under reference mentions the term "may", not
"shall". Thus, to any reasonable person, this law is applicable to serious offences,
but not minor ones, such as the forged case of which its punishment is only a fine or
less than 3 months imprisonment or the new void case and one which a bail was
granted.
115. The Complainants further support their argument by referencing the
Commission's General Comment No.5 on the African Charter: on the Right of
Freedom of Movement, in number 14, which provides that:
"while limitation of rights is permissible under international human rights law,
generally, and under the African Charter, specifically, such limitations must never
render rights illusory. To be permissible, any l,i~itatioll,:'9n the ~,ightto freedom
must serve a legitimate aim; and must be piCiportionate witRHWandabsolutely
necessary for the advantages that are to. be obtained in a free and democratic
society."
116. The Complainants aver that the illegal travel ban by the Director constitute a
violation of Article 27 of the Constitution of South Sudan
and violations of Article 12
.,.r
(1) and (2) of the Charter.
Alleged violation of the ri~ht to Property (Article 14)
117.
of
the following details:
Registered Plot owner: Isaac Jugar
Plo] number: 69, Blo<il<
A Ill, 4th Class, Residential Area, Lologo, R
[uba County, Central;']~quatoriaiState,
118. They also submit that they have been in peaceful possession of the land since
May 15, 1990. The Search Certificate, the Allotment of Plot No: 69, Block A Ill,
Lologo and the Confirmation Certificate Form (see page 1 to 2 and page 5 of the
Evidence) are the proofs of ownership of the said land (Section 57 of South Sudan
Land Act, 2009). This property rights to land is an exclusive right of the
complainants (Article 28 and 171 (2) (c) of the Constitution of South Sudan). It shall
not be confiscated without court order (Article 28 (2) of the Constitution), and the
home (the fence and the properties inside it) shall also not be demolished without
court order (Article 34 (3) of the Constitution).
119. They further submit that the Soldiers from the Military Police belonging to the
Respondent State, on orders of their Commander, violated the human rights of the
complainants by raiding and unlawfully and violently confiscating their land,
demolishing their home (fence and properties) and unlawfully handing the
possession of their land to Mading Ngor, who has no legal title to the land, and who
continues to forcefully occupy the land together with the soldiers. They state that
Schedule (B) (7) of the Constitution of South Sudan and Section 41 (2), (4) & (5) of
the Land Act, 2009, provide that land management and administration is
77th
Ordinary Session of the ACHPR
21
decentralized, each State Government is charged with the management and
administration of land within its jurisdiction for the benefit of the people of
Southern Sudan... and such management responsibilities are assigned to its
concerned Ministry at the State level, County Land Authority, and Payam Land
Council. Thus, it is not within the competence or jurisdiction of the army or the
police to involve in land administration.
120. They support their argument by referring to Principles and Guidelines on the
implementation of economic, social and cultural rights in the African Charter on
human and peoples' rights, number 55 (a): provides that, parties have the obligation
to ensure peaceful enjoyment of property and protection from forced eviction. This
obligation implies that the State shall protect the enjoyment in all its forms, from
interference by third parties as well as its own agents.
121. The Complainants aver that the actions of the Respondent States army and
police violate Article 14 of the Charter. The Complainants. also aver that the seizure
of the passport constitutes a prima facie violation "ofArticle~4 oftn~;(£;harter.,
_,-. ~-,
Alleged violation of the right to health, right to family
discrimination against women (Article 16(1), 18(1&3)
and ':protection from
:;f0P
122. The Complainants submit that by intruding their house with heavily armed 14
military police soldiers in a combat-like s,iruation, and forcefully chasing everyone
away from the home, including children, and making them homeless, the soldiers
created intentional anguishes onthe complainants with full impunity. These actions
by the soldiers and the police severely damaged t1j..~physical health and the moral
of the family of the complainants.'
,"'.
,
,
123. They state that the family is the natural and fundamental unit of society and
shall be protected by law. It is the right and duty of parents to care for and bring up
their children (Article 39 (1) & (3) of the Constitution). They aver that agents of the
ResPQn9:~ntState fiercely invaded the family of the complainants and shuttered its
union, which is a fundamental unit of the society of South Sudan. Such intolerable
and emotional pains were noticed by the Respondent State when the complainants
were seeking q,pgent jnt~xyention and law and order, but the Respondent State
aggravated the pain byfdeliberately ignoring their plea for help and justice. The
complainants aver that these constitute violations of Article 16 (1) and 18 (1) & (3) of
the African Charter.
'.11'"
Otit-lUM",,,,
Alleged relegation of the respondent State in its duty to promote and e
(c'bhr~
~
teaching, educat~on and publication, the respect of the rights and freed~ •. "'co;" " , 'n (',\
the Charter (Article 25)
,~
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...
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124. The Complainants submit that the Respondent State has not co - ~
witlll!.tth.0,.~
provisions of Article 25 of the Charter since becoming a state party. Tl{~~'WYeoQt>"(v.
the Complainants is a NELGA trained researcher. NELGA is a creati . :"r",l'·'K'frl~'a.n'"
"I>!v ff, r'
Land Policy' Centre (Land Policy Initiative), mandated to spear e d the
implementation of the African Union's Agenda on Land. The Complainants lawyer,
with experience in land governance research, has noted so many similar violent
occupation and eviction by the members of the army that largely go with impunity.
77th
Ordinary Session of the ACHPR
22
125. They aver that the use of the military in illegal land occupation is common,
particularly in the capital Juba. Despite the problem being recognized by the
Respondent State in the 2018 peace Agreement, with a provision demanding the
Respondent State to "address issues of land grabbing and other malpractices
involving land" (Article 4.8.2.1.1 of the R-ARCSS), the Respondent State has not
made any orders intended to curb the situation and to permanently prevent
individual members of the military from abusing their military powers by violently
confiscating civilian land.
126. They further submit that the Respondent State has the duty to promote and
ensure through teaching, education and publication, the respect of the rights and
freedoms contained in the Charter and to see to it that these freedoms and rights as
well as corresponding obligations and duties are understood by its members of the
security sector and the law enforcement. By not d()~n&so, itconstitutes continues
violation of Article 25 of the Charter.
.
Alleged relegation of the respondent State in its duty to guarante,e the independence of
the courts (Article 26)
.
127. The Complainants submit that, contrary to the obligations placed on States by
Article 3(h) of the Constitutive Act el1joinsAfrican States to promote and protect
human and peoples' rights in accordarice "Y'iththe African Charter, the government
system of checks to prevent-human rights :violations is flawed and ineffective, and
that the Constitution of Sortth Sudan has no provision for the effective enforcement
of the Bills of Rights which is a guarantee of compliance with the Charter.
"
,
.>~
/~-,
~}(
128. They also submit that the Constihitional provision of Article 9 (4), on the
jurisdiction of the Supreme Court to uphold the Bills of Rights is shallow and weak
in enforcing the Bills of Rights and that there are no effective enforcement
mechanisms in the constitution that can make the domestication of the Charter
realistic, practical and effective. They state that, in particular, there are no
constitutional provisions for courts to enforce the Bills of Rights through various
writs, such as habeas corpus, mandamus and certiorari and a provision allowing
individuals to apply to the courts directly for these writs to enforce their
constitutional rights, in an ,easy and effective procedure and in a shortest period
possible.
129.
They further submit that there is no effective constitutional supervisory
jurisdiction for the courts to compel the Executive branch to adhere to the
constitution and protect and uphold the provisions of the Charter, and that the
Respondent State violates Article 26 of the Charter by not allowing the
establishment and improvement of appropriate national institutions entrusted with
the promotion and protection of the rights and freedoms guaranteed in the Charter.
Respondent State's Submission on the Merits
130.
The Commission's Analysis on the Merits
77th
Ordinary Session of the ACHPR
131.
In accordance with the provisions of Rule 116(2 and 4) of its Rules of Procedure, the
Respondent State was invited to make its submissions, but failed to do so.
132.
The Commission recalls that it has, in its jurisprudence, set out the principle that
where allegations of human rights violations go uncontested by the government
concerned, particularly after repeated notification or request for information on the
case, the Commission must decide on the facts provided by the complainant and
treat those facts as given20.
133.
It follows from this that the Commission proceeds to consider the merits of the case,
on the basis of information provided by the Complainants and its analysis of the
circumstances, in line with Rule 120(2) of its Rules of Procedure.
Alleged violation of the right to non-discrimination
(Article 3), on the basis of ethnicity
(Article 2) and equal protection
134.
Article 2 of the African Charter provides that: "Every individual shall be entitled to the
enjoyment of the rights and freedoms recognized and guaranteed in t~e present Charter
without distinction of any kind such as race, ethnic group~ colour, sex, 'language, religion,
political or any other opinion, national and social ori;iin,}ortune, birth or any status"
135.
Article 3 of the African Charter provides that: "Every indiuidual shall be equal before the
law"; and "Every individual shall be entitled to equal protection ej the law".
136.
Both Articles 2 and 3"have an element of discrimination which makes them
intrinsically linked and inter-dependent The connection between Articles 2 and 3 of
the Charter have also been expressed by the Commission in its jurisprudence
wherein the COmmission noted that the right to non-discrimination and equal
protection of the law are interlinked to the extent that a violation of one result in a
violation of the other.s'
137.
In view of the fact thatthe principle of discrimination cuts across both rights, the
Commission will proceed to examine both rights together in its analysis of this
claim.
138.
The Complainants allege that they had suffered discrimination in that the military
police and senior authorities that they had approached in the army did not show
interest to stop the violations, or to hear their case because they (the Complainants)
are from a minority tribe least represented in the Government, while the
perpetrators were tribesmen of the military police and senior authorities. They state
that while they were constantly harassed, arrested and denied access to justice,
despite reporting their ordeals to the Police, the perpetrators were left unpunished.
20 See Communication
59/91, Embga Mekongo Louis v. Cameroon; Communication 60/9
In support of the above allegations, the Complainants allude that the refusal of the
authorities of the Respondent State to hear their case was because they were not
from the majority tribe.
139.
The Commission highlights that there is discrimination if there is any distinction,
exclusion, restriction or preference which is based on any ground such as race,
colour, sex, language, religion, political or other opinion, national or social origin,
property, birth or other status, and which has the purpose or effect of nullifying or
impairing the recognition, enjoyment or exercise by all persons, on equal footing, of
all rights and frccdoms.F
140.
With regard to equality before the law, the Complainants allege that while the
perpetrators enjoyed maximum protection of the natibnal laws, they (the
complainants) were ethnically discriminated against by the Respondent State
through its agents, by being denied equal protection of the same national laws
which their aggressors enjoyed.
141.
In this regard, the Commission takes note of the Complainants' ape&ation that while
an arrest warrant issued against Mad,~l1gwho had used the State ag~ptsto forcefully
take over the property of the Complainants could not be executed and he could not
be brought before the law, because he was being guarded by soldiers of the
Respondent State, two of the Complainants - Rose Modong and John Kerry, were
arrested severally after their"property was destroyed, as they were unprotected.
142.
The Commission is conscious of the nature of Article 3 of the African Charter with
its two-tier principles' /quality beJore the law' andi;~qual protection of the laws' under
Articles 3(1) and 3(2) respectively. Consequently, in determining the extent to which
Article 3 has been violated by the Respondent State, it will combine the two
principles which both have a component of discrimination, but will however reflect
the specific content of the right as violated in its finding.
143.
In Zi11J~f;lbweLawyersfpr Human Rights and the Institute for Human Rights and
Development (on behalf of Andrew Barclay Meldrum) v Republic of Zimbabwe, the
Commission explicated the principle of equality before the law" under Article 3(1) to
mean "the right, to' equa! treatment under similar conditions." The Commission
underlined that, individuals in the same jurisdiction should be treated fairly and
justly within the legal system and be assured of equal treatment before the law and
equal enjoyment of the rights available to all other citizens.P In other words,
national laws should be applied in the same manner across the board without
discrimination. The Commission also elucidated the scope of "equal protection of the
law" to include circumstances where no person or class of persons are denied the
same protection of the laws enjoyed by other persons or class of persons in the same
situations.o It concluded that non-discrimination goes together with equality before
the law and equal protection of the law and constitute a basic and general principle
in the protection of human rights.25
/I
144.
Accordingly, in determining the extent of the violation of this right in this case, the
Commission considers of the general issue covered by Article 3, namely, whether
the Complainants were treated unfairly (discriminatorily) within the legal system in
the Respondent State and whether they were denied the enjoyment accorded by the
laws in the State. In doing so, the Commission will analyze the supposedly inaction
of the authorities of the Respondent State to ascertain the discriminatory aspect of
their behavior, in light of Article 14 of the Constitution of the Republic of South
Sudan referenced by the Complainants as also being violated.
145.
With respect to the adduced inaction of the Respondent State authorities, the
Commission, in perusing the Complainants' submission in this regard, observes that
the Respondent State did not prevent Mading and the Military Police from
destroying the property of the Complainants despite receiVi.rg_their reports of the
threats by Mr. Mading.
146.
The Commission notes that Officers of the Respondent St;a,t~{part~s~larly the Police
at the Northern Division opened a criminal case against rVratling,;!lihdwere. willing
to arrest him and had in fact issued an arrest warrant on him for destroying the
property of the Complainants and had ordered _for the eypluation of the
Complainants' estate to determine the cost of the things that were{festroyed. Also,
the Public Prosecution in Central Equatoria State had written a letter requesting for
the withdrawal of the forged criminal cas~.brought against one of the Complainants
who was also their lawyer, citing that thegase was a malicious proclamation against
his right and aimed at destroying his reputation.
.
147.
Nonetheless, the Com~ission observes from the '£atis of the case, that the relevant
authorities of the Respondent State did not take any further concrete action to
protect the Complainants from the ordeals they suffered. While the Military Police
of the Respondent State had prevented the arrest and prosecution of Mr. Mading,
the Complainants were left unprotected from being harassed, intimidated and
rendered homeless by Mr. Mading and the State Military Police.
.
148.
.'""'~
,';-"'
in
The Commission bears
mind that it has stated that a violation of the principle of
non-discrimination arises if' equal cases are treated in a different manner and that a
difference in treatment .does not have a reasonable justification, if there is no
proportionality between the aim sought and the means employed.w This lines up
with the United Nations Human Rights Committee's decision in Broeks v. the
Netherlands, that" the right to equaliti] before the law and equal protection of the law
without any discrimination, does not make all differences of treatment discriminatory. A
differentiation based on reasonable and objective criteria does not amount to prohibited
discrimination within the meaning of Article 26."27
149.
It therefore follows that the principle of equality or non-discrimi - ~.}~~~~;~;}"
10
mean that all differential treatments and distinctions are ~rbi
. he «'0... \
Jurisprudence of the Commission illustrates that Parties must pr, te t t ~e
t ~\
received was discriminatory or selective in order to establish t _~tg: ey,\a't-; n t~ E
been treated equally by the law.28 Therefore, while Article 3
1\ teesusimilai f-'
I
"'~
.
'..
0'\1
'"~ >:"HIC~INl
/.Q~
)c.'"
0
'"
,". /
Communication, 313/05, Kenneth Good v Republic of Botswana, para 219
·, .....
~~""c£1 rr<..,
r\"Q
.
27 Communication
No. 172/1984, S. W. M. Broeks v. tlze Netherlands (Views adopted on 9 Apr! . ,
UN doc. GAOR, A/ 42/ 40, p. 150, para. 13
28 Communication 323/06 - Egtjptian Initiative for Personal Rights find JNTERRIGHTS
v Egtjpt, para 176.
77th Ordinary Session of the ACHPR
26
26
I
treatment, it does not necessarily mean identical treatment, and where there is
differential treatment, there should be a connection between the basis of the
treatment and the objective of the relevant legislation that imposes the treatment.
The State will consequently not violate the equality clause if there is reasonable
justification or compelling reasons why the same class of people were not treated
alike.
150.
The Commission bears in mind that, in Antoine Bissangou v. Republic of Cong029,
it had reckoned that for Article 3 to be applicable, the inequality alleged by the
Complainant should follow from the "law". The Commission was also of the opinion
that the States would violate Article 3 if they were to exercise a power or judgment
conferred by a law in a discriminatory manner. The Commission also had held in
that case" that Article 2 contained the 'principle of n011-discrimination' and Article
3, the principle 'of equality', and thus that together these principles 'mean that
citizens should be treated in a fair and equitable manner before the law and have
the right to enjoy, with no distinction whatsoe"0~F' the 'l;ights, guaranteed by the
Charter. It was also of the view that Article 2 is not a standalone right, similar to
Article 14 of the European Convention on Human Rights (ECHR), and held that it
'does not stipulate a general banning of discrimination but that it only prohibits
discrimination where it affects the enjoyment of a right or freedom guaranteed by
the Charter'. In that case, the Commission did not find a violation of Article 2 as it
held that the complainants had not shownhow the appfication of other rights in the
African Charter had been 'hindered in a discriminatory manner',31
151.
In the present case, the Commission notes that although the Constitution of the
Respondent State which constitutes the most unambiguous form of law, promotes
equal protection of the law and prohibits discrimination on the basis of race, ethnic
origin, colour, sex, language, religious creed, political opinion, birth, locality or
social status, the actions of the agents of the Respondent State did not reflect nondiscriminatory equal protection before the law.
152.
The Commission recalls that in the SERAC case'? it had affirmed that: "Governments
have a duty to protect their citizens, not only through appropriate legislation and effective
enforcement but also by protecting them from damaging acts that may be perpetrated by
private parties. ", In Institute for Human Rights and Development in Africa (on behalf
of Esmaila Connateh & 13 others) v Angolat«, the Commission dealt with
complaints alleging similar violations of freedom from discrimination. The victims
who had been living in the concerned State for varying lengths of time, were
arrested, detained and expelled and their property confiscated notwithstanding that
they had obtained official documentation, including visas, residence and work
permits, in order to lawfully reside and work in that country. The Commission held
that "Article 2 of the African Charter basically forms the anti-discrimination
principle that is essential to the spirit of the African Charter and is therefore
necessary in eradicating discrimination in all its guises". It further held that "a
27
State's right to expel individuals is not absolute and is subject to certain restraints,"
such as "a bar against discrimination based on national origin".
153.
In the present Communication, the damaging acts were perpetrated by a private
party in collaboration with Agents of the State. Although it has not established from
the Complainants' submissions, that the actions of Mading and the Military police
followed from any law of the State, the Commission bears that it is incumbent on
the Agents of the Respondent State to adhere to the State's Constitutional
requirements and for the State to amend any legislation, if such exists, that
undermines the spirit and purport of its Constitutional provisions and relevant
international and regional human rights instruments, principles and standards.
154.
The Commission also adduces that although the Rcsporident State had initiated a
site visit of the Complainants' destroyed property and produced a report of its
investigations to determine the extent of the destruction and the cost of the property
destroyed in order to take the necessary admipistrativ~tmeas'!t~¥S, these initial
actions of the State are insufficient to constitute effective enforcement of its
Constitution and protection of its citizens (the Complainants), from damaging acts
that were perpetrated by private parties.
155.
The Commission therefore infers from the facts before it, that there was unfair
differential treatment against the ComBla~nants in the present Communication,
because the complainants did not receiveequal protection, due to the status of the
other party.34 Accordingly, the Commission finds that there was a violation of
Articles 2 and 3 (2) of the African Charter by the Re§pondent State.
Alleged violation of Article 4 of tHe African Chart~r :. respect for life and integrity
of the person
156.
According to Article 4 of the African Cha;ter, "Human beings are inviolable. Every
human being shall be entitled to respect for his life and the integrity of his person. No one
may be ~rbitrarily deprived of this right."
157.
The Complainants adduce that the sudden raid carried out on their property by the
14 heavily armed 'soldiers in a combat-like manner, amounted to an unlawful
eviction, and Gontravefi~9-'Section 152(c) of the Constitution of South Sudan and
Section 85 of its Land Ad 2009. They further submit that the unlawful eviction had
the potential of causing death to a pregnant woman, her unborn child, an elderly
woman with medical history of hypertension and young children, constitute a
violation of their right to respect for life and integrity of the person stipulated in
Article 4 of the African Charter.
.
~
158.
28
dignified life, with progressive realization of various economic, social and cultural
rights which contribute to securing a full and dignified life; violations of such rights
may in certain circumstances therefore also entail violations of the right to life. Thus,
in some situations, the right to life goes beyond an immediate obligation. The
Commission further stated that the State's positive duty towards enjoyment of this
right includes protection of individuals and groups from real and immediate risks
to their lives caused either by actions or inactions of third parties.
159.
In this regard, in the case of Kazeem Aminu v Nigeriai", where the victim was
compelled to go into hiding for fear of his life, the Commission found a violation of
Article 4, holding that although he was still alive, he was in hiding for fear of his life
and it would be a narrow interpretation to this right to think that it can only be
violated when one is deprived of it. It further held that"lt' cannot be said that the
right to respect for one's life and the dignity of his person, which this article
guarantees, would be protected in a state of constant fear and! or threats. In that
case, the victim's case could not be heard because of de~~e.~s,pr9ij}u~gateclby the
military regime in the Respondent State, which contained an ouster clausetbarring
courts from entertaining proceedings relating to those decrees.
160.
In the present case, however, the Commission notes that the hardships faced by the
Complainants was not because of any law of the Respondent State baring the courts
from hearing their case. Therefore, the Commission would examine the allegation of
violation of Article 4 by the weight of the evidence in the Complainants'
submissions before it, enumerated above'". In so doing, the Commission will stick
to its role of ensuriI.'g;Jqat during the actions described by the Complainants, a
provision of the African Charter was not violated by the Respondent State'".
161.
From the Complainants' submissions, the Commission observes that the fact that
their unlawful eviction had the potential to cause a violation of right does not mean
that the right in question was violated. There was no concrete evidence adduced to
support that the circun~~!ances of the complainants entail violations of the right to
life. In this regard, the Co:rnmission relies on its jurisprudence in Egyptian Initiative
for Personal Rights and Interights'", wherein the victims concerned in the case were
sentenced to death through a process that denied them the due process of fair trial
and the Commission found that Article 4 was not violated given that the victims
had not yet been executed but were still alive, howbeit in a neighboring State.
162.
In light of the above, the Commission does not hold the Respondent State to be in
violation of Article 4 of the African Charter.
··;t~!liiI1
163.
36 Communication
205/97, Kazeem Aminu v Nigeria, 11 May 2000, para 18.
97 - 99 above
38 See Communication 40/90, Bob Ngozi Njoku/Egypt, para. 61
39 Communication 3341 06, Egyptian Initiative for Personal Rights and Interights v Arab Republic of Egypt, para ..
37 See paras
77th Ordinary Session of the ACHPR
<
29
164.
Article 5 of the African Charter provides that" ... all forms of ... torture, cruel,
inhuman or degrading punishment and treatment shall be prohibited".
165.
According to the Complainants, the demolition of their home, destruction of trees
and other properties belonging to them, chasing them away from their home
without prior official notice or court order, as well as the intimidation, abuse, death
threats, abduction and torture of their lawyer by pressing his thumb severely with a
plier, in order to force him to cease seeking hearing of the case, violates Article 28(1)
of South Sudan's Constitution, and constitutes a violation of Article 5 of the Charter
which prohibits torture, cruel and inhuman treatment.
166.
The Commission notes that the Complainants support this claim by alluding to the
Commission's decision in John Modise v. Botsuianaw, and that they also reference
the Commission's General Comment No. 4 on the African Charter: Redress for
violation of Article 5.
167.
In this regard, the Commission reiteratesits view set out in the General Comment 4
on Article 5 of the African Charter that" ... that.there is a mutually reinforcing link
between the right to dignity and the absolute' prohibition of torture and other illtreatment." Also, it notes that Articles 11 and 18 of the Constitution of South Sudan
protects the right to dignity and integrity.of persons arjd prohibits torture.
168.
Also, the Commission factors in the definition of torture by the Convention Against
Torture and Other Cru~kqr-Inhuman or DegradingTreatment (CAT) reiterated in its
Resolution+' as: "any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from him or a third person
information or a confession, punishing him for an act he or a third person has committed or
is suspected of having committed, or intimidating or coercing him or a third person, or for
any reason based on discrimination of any kind, when such pain or suffering is inflicted by
or at the instigation of or :llJiththe consent or acquiescence of a public official or other person
acting ift'an official capadriJII42
169.
Further, the Commission recalls its jurisprudence in International Pen,
Constitutional Rights Project, Interights (on behalf of Ken Saro-Wiwa) v. Nigeriav
where it held that the prohibition of torture, cruel, inhuman or degrading treatment
includes actions which cause serious physical or psychological suffering (or)
humiliate the individual or force him or her to act against his or her will or
conscience.
Sudan'" the Commission adopted the stance of the UN Committee Against Torture
in Hijrizi v. Yogoslauiaw, which opines that forced evictions and destruction of
housing carried out by non-state actors amounts to cruel, inhuman and degrading
treatment or punishment, if the State fails to protect the victims from such a
violation of their human rights. It also agreed with the reasoning in similar case'?
handled by the European Court of Human Rights which dealt with allegations that
the applicants' property had been destroyed by Turkish security forces, that the
destruction of homes and property was cruel and inhuman treatment.
171.
In light of all the above and the substantiated evidence submitted by the
Complainants, the Commission concludes that the various ill treatments meted on
the Complainants amount to torture in terms of the African Charter and other
international instruments, substantive international, jurisprudence and practice
developed in recent years regarding the nature of the prohibition of torture and
cruel, inhuman and degrading treatment and the obligations of states to protect its
citizens against such treatment. Consequently, a violation~f;Artic~~~:5 of-the African
Charter is established.
.,
..
i ',"'
Alleged violation of Article 14 - right to property; Article 16(1) ....~ight to health;
Article 18(1) and 18(3) - Right to family and protection from discrimination against
women, of the African Charter.
172.
The Commission is mindful that in Social and Economic Rights Action Center & the
Center for Economic and Social Rights v. Nigeria (SERAC & CESR v Nigeriar", it
held that, although the right to><{lopSingor shel,t~r.,is not explicitly provided for
under the African Charter, housing rights are protected through the combination of
provisions protecting the right to 'property (art 14), the right to enjoy the best
attainable standard of mental and physical health (art 16), and the protection
accorded to the family (art 18(1)). The Commission thus illustrated the
interrelationships of the right to health, and the right to family.
173.
The Commission. bearing in mind the above-mentioned interrelationships, will
therefore examine the authenticity of the allegations of violation of Articles 14,
Article 16(~), Article 18(1) and 18(3), simultaneously.
174.
Article 14 provides that-liThe right to property shall be guaranteed. It may onLy be
encroached upon in the interest of public need or in the general interest of the community
and in accordance ioith. the provisions of appropriate laws."
175.
The Complainants aver that the demolition of the sort that was carried out on their
property without prior official notice or court order, or through any unlawful order
or methods, disregards courts authority, violates laws binding on the army and
their right to property.
They also state that the seizure of the Passport of their
lawyer - Mr. John Gerry, constitutes a prima facie violation of his right in terms of
Article 14 of the African Charter.
176.
The Commission notes, from the Complainants submission, that the issue of public
interest does not arise since the property of the Complainants was duly and lawfully
acquired by the Complainants, and its destruction was not due to public interest or
the general interest of the Community, but rather due to the avarice of an individual
connected to the Military Police of the Respondent State. Consequently, the
Commission would proceed to examine whether the Respondent State failed in its
obligations to protect the right to property alleged to have been violated.
177.
In so doing, the Commission is aware that the African Charter does not particularly
describe the scope of the right to property. However, it calls'to mind that in John K.
Modise vs Botsuianav where the complainant had claimed a violation of the right to
property under Article 14 alleging to have suffered heavy financial loses, due to
confiscation of his belongings and property by th,,;,gover~~n-t ;of.f~qtswa~~,?uring
the 4 times they had deported him. In these circiimstances.the Commission found
the action of the government of Botswana an encroachment of the Complainant's
right to property guaranteed under Article 14..of the Charter'. Also;:,.tl,le
Commission
recalls that in Malawi African Association and Others vs Mtiuritania50, the
Commission considered land as 'property' for the purposes of Article 14 of the
Charter, stating that "The confiscation, and 100tir~Kof the property of black
Mauritanians and the expropriation or destruction of their land and houses before
forcing them to go abroad constitute a violation of the right to property as
guaranteed in article 14,,;
178.
The Commission remains mindful of "the Principles and Guidelines on the
implementation of economic, social and cultural rights in the African Charter on
human and peoples' rights" (Nairobi Reporting Guidelines), which purpose is to
assist State Parties to comply with their obligations under the African Charter.
Therein, the Commission expounded the contents of economic, social and cultural
rights to include the protection of the real rights of individuals and peoples in any
material thing which can be possessed as well as any right which may be part of a
person's patrimony, the protection of a legitimate expectation of the acquisition of
property and the rights of the individual, group or people to peaceful enjoyment of
the property. The right may only be limited by the State in a non-arbitrary manner,
according to the law and the principle of proportionality.
179.
The Principles and Guidelines in line with the UN General
, r\tRI~~'()"
prohibit forced evictions, described as acts and/ or omissions invSlvip~fth~ erc°-o
or involuntary displacement of individuals, groups and communities £:r'qp1 h Il!e~
and/ or lands and common property resources that were occupied o'r-dlpe
I
upon, thus eliminating or limiting the ability of an individual, grOti:Nr 't'O~utrlty _J
to reside or work in a particular dwelling, residence or locati9h~'V'~1[fj9ftt~<I
".provision of, and access to, appropriate forms of legal or other' 1p'r(j)te(£tI~"It
obligates State parties to protect the enjoyment of property in all its -form~,'from
O~I-IUMAN..q
®c:€
49 John.K.
Modise v. Botswana, African Commission on Human and Peoples' Rights, Corum. No. 97/93 (2000)
para. 94
50 Communications Nos. 54/91,61/91,98/93,
164/97 it 196/97 and 210198 (2000), 13th Activity Report, para. 128
51 CESCR General Comment No.7 (1997) on the right to adequate housing (Article 11(1)): Forced Evictions.
77th
Ordinary Session of the ACHPR
32
t
interference by third parties as well as its own agents. This obligation is also
reflected in the Commission's Resolution= which states that the States have
obligation to respect and protect 'against any form of encroachment', and to 'refrain
from and prevent forced evictions, including by private actors. It also prohibits
States 'from interfering arbitrarily in the enjoyment of property rights, including
expropriation without legal grounds or which is not performed in the public
interest.
180.
In this regard, in Zimbabwe Human Rights NGO Forum/Zimbabuiev
the
Commission noted that an act by a private individual or [non-state actor] and
therefore not directly imputable to a State, can generate responsibility of the State,
not because of the act itself, but because of the lack of due diligence on the part of
the State to prevent the violation or for not taking the necessary steps to provide the
victims with reparation.
181.
In Sudan Human Rights Organisation & Centr,~/\qllHousing Rights and Evictions
(COHRE) / Sudan, the property of the victims Had been destroyed by the State's
military forces and armed groups, acting on their own, or believed to be supported
by the Respondent State. The Commission found the RespondentState in violation
of Article 14 because the State could not prove that it-refrained from the eviction, or
demolition of victims' houses and other property, since it had not taken steps to
protect the victims from the constant attacks and b9:mbings, and the rampaging
attacks by the Janjaweed militia. The Commission stated that the fact that that the'
victims could not derive their livelihood' from the land they possessed for
generations meant th~Y;?l:1adbeen deprived of .the use of their property under
conditions which are not permitted by Article 1454.
182.
Regarding the second aspect of the Complainants' claim that the seizure of their
lawyer's Passport violated his right to property, the Commission notes that the
Passports and Immigration Act, 2011 of South Sudan gives the Directorate of
Nationality, Passports. ~I1d Immigration under the directives of the Minister of
Interior, authority to issue, cancel; or withdraw Passports, howbeit, in line with
prescribed Regulations. The Commission is therefore of the view that although the
aforementioned Act does not specifically mention so, under the law of most
countries, passports are government property, given that they are governmentissued, and may therefore be limited or revoked at any time, usually on specified
grounds, and possibly subject to judicial review.
183.
52 ACHPRI
Res.23I , Resolution on the right to adequate housing and protection from forced evictions, adopted 22
October 2012.
53 Communication
245/2002, Zimbabwe Human Rights NGO Forum/Zimbabwe, paras 135. 143, and 160.
54 Communication
279/03-296/05, paras 194 and 205
ir- Ordinary Session of the ACHrR
33
184.
Article 16(1) of the African Charter provides that "even) individual shall have the right
to enjoy the best attainable state 0.( physical and mental health." Article 18(1) states that
"the family shall be the natural unit and basis of society. It shall be protected by the State
which shall take care of its physical and moral health"; and Article 18(3) that "The State
shall ensure the elimination of every discrimination against the woman and the child as
stipulated in international declarations and conventions."
185.
The Complainants claim that the intrusion of the Respondent State's military police
soldiers into their house made their women and children homeless, created
intentional anguishes on the complainants, severely damaged the physical health
and their family moral, thus violating Articles 16(1) and 18(1) and 18(3) of the
African Charter.
186.
In considering whether these rights have been violated as claimed, the Commission
will consider the normative contents of these rights as set'q~'t!in;it~;lBr-:n
il}?truments
and instruments of international treaty bodies and in light of the considerable
developments in international law with .respect to the normativedefinition of the
right to health, which includes health care and underlying determinants of health.
~~
':'
lJ~ .. :
!
.:v_":!·
187.
The Commission's Nairobi Reporting Guidelines, states that the right to health does
not mean the right to be healthy. It is 't~tl).er an inclusive right that encompasses
both access to adequate health care and the underlying determinants of health such
as: access to safe and potable water, adequate' sanitation, an adequate supply of safe
food and clothing, nutrition and b;q:using,healthx;?~ccupational and environmental
conditions, effective access to health-related edUcation and information.
The
Commission's Resolution on Access to Health and heeded Medicines= added to this
list all underlying aspects of health.
188.
Also, the Commission, in its General Comment No.2 on the Maputo Protocol=,
linked~n interpretation of 'mental and physical health' with the WHO definition: "a
state 6fi'tOmplete physicaf mental and social well- being and not merely the absence
of disease or infirmity".
'
189.
In these regards; in Sudiirr'Fiuman Rights Organisation & Centre on Housing Rights
and Evictions (COHRE) v Sudaw", the Commission found the looting and
destruction offoodstu££s, crops and livestock and poisoning of wells and denial of
access to watersources by the Sudanese government in Darfur to be a violation of a
number of rights including the right to health. Consequently, Sudan was required
to, among other things, rehabilitate the social and economic infrastructure to enable
internally displaced persons and refugees to return to the area and resolve issues of
land, water and livestock.
34
190.
In SERA.C & CESR v Nigeria'», the Commission included the right to health in its
listing of the implied rights expressly derived from the rights to property and
family, and held that these rights were violated by the destruction of housing and
harassment of residents who returned to rebuild their homes.
191.
As touching the right to the protection of family and the duty of State to take care of
the family's physical and moral health as we as protection of women and children
from discrimination and violence stipulated in Articles 18(1) and 18(3), the
Commission notes that it has alluded generally to 'family' as a composition of
individuals who are related by marriage, spousal relationships, or spouses and
children=. It has also widened the scope of the definition of family to include,
person 'in a de facto relationship or one not recognized by law, divorced or
widowed, live in an extended family or kinship group or have differing kinds of
responsibility for children and dependents or a particular number of childrens".
192,
The Commission considers that the family has been recognized as the natural and
fundamental group unit of society and is entitled to protection by society and the
State='. It also bears in mind that i~!:.·a,:Communication against The Sudan=
mentioned above, wherein it held that a violation of Article 18(1) had occurred, it
had considered that the forceful eviction of the victims from their homes, resulting
in some family members being killed, and others-fleeing to different places, inside
and outside the territory of the Respondent State, threaten "the very foundation of
the family and renders the enjoyment of the right to family life difficult.
193,
The Commission therefore reiterates its stand in Kenneth Good v Republic of
Botswana, that tqe State has a negative obligation to 'refrain from violating the
rights and interests of the family'<', Also, the Commission's General Comment on
"The Right to Redress for Victims of Torture and Other Cruel, Inhuman or
Degrading Punishment or Treatment= lists abuse, assault or harassment of women
as part of acts of gender-based violence.
, '.~
194.
In light of the above, and bearing in mind the obligations of the State to respect the
rights in the Maputo Protocol necessitates that States "refrain from hindering,
directly or indirectly, women's rights ... "65, the Commission is of the view that
conducts of the Government of South Sudan violated Article 16(1), and Article
18(1&3)of the African Charter.
Alleged violation of Articles 6
195.
Article 6 provides that "Every individual shall have the right to liberty and to the security
of his person. No one may be deprived of his freedom except for reasons and conditions
previously laid down by law. In particular, no one may be arbitrarily arrested or detained".
196.
The Complainants submit that the arrests and detention of the lawyer by military
police officers were arbitrary, random and contrary to the rule of law, as they had
no constitutional powers to do so to any civilian, and had not informed him of the
reason for the arrests. More so, the letter waiving the lawyer's immunity which they
relied on for the arrests, was unlawfully gotten because the procedures taken were
in violation of the independence of the bar association and the rights of a practicing
advocate who is an ex officio member of the court. They further allege that the
seizure of the lawyer's Passport constitutes a continuing arbitrary detention and
that these actions violate Article 6 of the Charter.
197.
The Commission recalls its established position that" States must ensure that no one
shall be subject to arbitrary arrest or detention, and that arrest, detention or imprisonment
shall only be carried out strictly in accordfm.~e with 'the, provisions ..of the law and by
competent officials or persons authorized for that purpose, pursuant to a warrant, on
reasonable suspicion or for probable cause"66 It also bears in mind the internationally
accepted principle of legality which provides that" deprivation of liberty must in all
cases be carried out in accordance with the law 67, and therefore notes that any detention
or arrest that is not consistent with due process of the law established by a State or
international human rights norm would be considered to be arbitrary or illegal.
l/
198.
The Commission will therefore proceed to examine the allegations of the
Complainants in light of the above, to determine the legality of the arrests meted on
the Complainant's lawyer as this is critical to proving whether the actions of the
Respondent State were lawful or not, and whether the alleged violations of the right
to liberty and security of the person arT substantiated.
199.
The Constitution of the Republic of South Sudan= states that every person has the
right to liberty and security of person and that 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.
200.
The Commission has defined the right to liberty as freedom from restraint and
ability to do as one pleases, in accordance with established law, and the right to the
security of the person as an expansion of rights based on prohibitions of torture and
cruel and unusual punishment including inter alia, national and individual
securitys". In a case where threats of arrest were made to an individual who was
planning to and so subsequently did not travel to give a lecture, it has held that the
allegations of arrests, detentions and threats constitute a violation of Article 6.70
201.
The Commission considers that although the use of force in securing an arrest is not
prohibited absolutely, it must be a measure of last resort and limited to
circumstances in which is it strictly necessary. In such case, it should be used very
minimally and proportionately, in accordance with national and international law,
and use of firearms should be employed only if the person being arrested presents
'an imminent threat of death or serious injury, to prevent the perpetration of a
serious crime involving grave threat to life, and only when less extreme measures
are insufficient to effect the arrest."
202.
In this regard, the Commission therefore re-asserts that restrictions to liberty should
only be allowed in accordance with the law and compatible with the African
Charter. In the process of arrests, authorities should not override constitutional
provisions or undermine fundamental rights guaranteed by. the Constitution, as
well as the African Charter.
203.
The Commission notes that Article 9(2) of the International Covenant on Civil and
Political Rights requires that when an individual is arrested; he or she must be
informed, at the time of arrest, of the reasons for the arrest and of any charges
against him or her.i? This principle was expounded by in the Commission's decision
in Constitutional Rights Project and Civil Liberties Organisation v. Nigeria 73. A
similar stance was taken in the Commission's decision in The Kenyan Section of the
International Commission of Jurists (ICl) v the Republic of Kenya74, where the
Commission declared that.the arrest and detention of victims without charges were
arbitrary and consequently constitute a violation of Article 6.
204.
Considering the submission of the Cgwplainants .yis-a-vis the Respondent State's
Constitutional provisions and internafi6pal standards as well as the jurisprudence
of the Commission, some of which have been afore-referenced, the Commission is of
the view that the arrest and detention of the Complainants' lawyer, without
informing him of the reason for his arrest, or proffering any charge of an offence,
did not meet the requirements of the Respondent State's Constitution. It is also
incompatible with the African Charter and other international standards and
therefore is arbitrary and unlawful. In these regards, the Commission finds a
violation of Article 6.of the African Charter.
Alleged violation of Articles 8 and 10
205.
206.
71 Guidelines
72
on the Conditions of Arrest, Police Custody and Pre- Trial Detention in Africa, April 2015, para 3.
See Article 9(2) of the International Covenant on Civil and Political Rights.
73 Communication
No.1 02/93-Constitutional Rights Project and Civil Liberties Organisation v. Nigeria, (1998),
ACHPR para. 55.
74 Communication
No. 385/10- The Kenyan Section of the International Commission of Jurists (ICl) v the Republic
of Kenya, para 124.
77th
Ordinary Session of the ACHPR
37
207.
The Complainants aver that the Respondent State violated his right to freedom of
profession (practice his profession) in terms of Article 136 (1) of the Constitution of
South Sudan which states that "advocacy is an independent private legal
profession", in that the Chairperson of the Bar Association wrote the letter for the
waiver of the immunity under duress, and it was unlawfully used against Advocate
John Gerry, instead of the person of Advocate John Kiri, thereby violating Article 8
of the African Charter. They also claim that these actions by agents of the
Respondent State also violated the independence of the South Sudan Bar
Association provided for in Section 43 (2) of the Advocates Act, 2013 and its
freedom of association, and therefore Article 10 of the African Charter.
208.
The Complainants support their argument by referring to the Commission's
Principles and Guidelines on the Right fair Trial and Legal Assistance in Africa,
which inter alia provides that, 'Governments shall ensure that lawyers: (a) are able
to perform all of their profession functions without intimidation, hindrance,
harassment or improper interference; (b) are able to travel and to consult with their
clients freely both within their own country and abroad; and (c) shall not suffer, or
be threatened with, prosecution or administrative, economic or, other sanctions for
any action taken in accordance with recognized professional duties, standards and
ethics". It also states that charges or complaints made against lawyers in their
professional capacity shall be processed expeditiously and fairly under appropriate
procedures. Lawyers shall have the right to a fair hearing, including the right to be
assisted by a lawyer of their choice. Disciplinary proceedings against lawyers shall
be brought before an impartial disciplinary, committee established by the legal
profession, before an independent statutory authority, or before a court, and shall be
subject to an independent judicial review.
209.
The Commission notes that the constituting elements of article 8 of the African
Charter are freedom of conscience and to profess and practice one's religion. It has
cited freedom of conscience' and the 'profession and free practice of religion'
together in the Endorois case", stating that 'freedom of conscience and religion
should, among other things, mean .the right to worship, engage in rituals, observe
days of rest, and wear religious garb'.
210.
In interpreting this Article 8 of the African Charter, the Commission distinguished
between 'profession of religion ... [as] an open declaration or affirmation of one's
religion, which is an outward act', and 'freedom to practice one's religion entails all
outward manifestations or observance of religious faith or belief, privately or in
community with others'." The Commission also further interpreted the contents of
this right in Amnesty International, Comite Loosli Bachelard, Lawyers' Committee
for Human Rights, Association of Members of the Episcopal Conference of East
Africa v Sudan.i? where non- Muslims were denied work, food aid and education,
where food was not distributed evenly in prisons. The Commission found that '[t]
hese attacks on individuals on account of their religious persuasion considerably
38
restrict their ability to practice freely the religion to which they subscribe', in
violation of Article 8. Similar interpretations have also been given in other various
jurisprudences of the Commission."
211.
With regard to Article la, the Commission recalls that it has defined an association
as an organized, independent, not-for-profit formal or informal body based on the
voluntary grouping of persons with a common interest, activity or purpose"?". Its
jurisprudence has held that this right can be enjoyed both by individuals and by
groups'", and construed freedom of association to mean gathering with others and
the right to assemble freely and peacefully.s' In Lawyers of Human Rights v
Suiazilandst, a case where someone was prevented from gathering with others to
discuss human rights and got punished for doing so, the Commission held that his
right to 'freedom of association and assembly' had been violated.
II
212.
The Commission is mindful that the exercise of the right to freedom of association is
subject only to such restrictions established by. law as may be necessary in a
democratic society, in the interest of national security, public safety or public order,
or to protect public healthor morals or ~he,rtghts andfreedoms of others. However,
it is of the view that such restriction refers to instances relating to compelling one to
join an association or to associate with others. The Commission also considers that
the Respondent State failed to prove that the Complainant's lawyer behaved in a
manner that negatively affected or impacted national security, public safety or
order, or public health, morals, or rights and freedoms
others.
of
213.
Considering all the above, the Commission is of the view that Article 8 of the
African Charter does not relate to practice of a vocation, occupation or profession as
the complainants. have expressed. Consequently, the Commission does not find a
violation of Article 8 of the African Charter by the Respondent State. However, in
that the waiver of the lawyer's immunity resulted in his arrest, which affected his
freedom to perform. all of his profession functions without intimidation, hindrance,
harassment or improper interference, the Commission finds a violation of Article 10.
Alleged violation of Articles 12(1) and 12(2)
214.
Article 12proviCles 'that (1) Every individual shall have the right to freedom of
movement and residence within the borders of a State provided he abides by the
law; (2) Every individual shall have the right to leave any country including his
own, and to return to his country. This right may only be subject to restrictions,
provided for by law for the protection of national security, law and order, public
health or morality.
215.
The Complainants aver that their being forced to remain in hiding, to avoid further
abuses by the police and the soldiers occupying their lands, the confiscation of their
39
lawyer's Passport and the travel ban passed on him by the Director General of
Nationality, Passport & Immigration, contrary to Section 12 (2) and Section 16 (a) of
the South Sudan Passport & Immigration Act, 2011, constitute a violation of Article
27 of the Constitution of South Sudan and violation of Article 12(1) and 12(2) of the
African Charter.
216.
The Commission is cognizant that the AU Kampala Convention classifies "persons
or groups of persons who have been forced or obliged to flee or to leave their homes
or places of habitual residence, in particular as a result of or in order to avoid the
effects of armed conflict, situations of generalized violence, violations of human
rights or natural or human- made disasters, and who have not crossed an
internationally recognized State border'<', as internally displaced. The Convention
obligates States to, among other things, "refrain from, prohibit.and prevent arbitrary
displacement of populations and prevent political, .social, cultural and economic
exclusion and marginalization, that are likely to cause displacement of populations
or persons by virtue of their social identity, religion or political opinion.//84
217.
In this regard, the Commission reminiscences that in,MalawiAfrican
Association,
Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l'Homme
and RADDHO, Collectif des veuves et ayants- Droit, Association .mauritanienne
des droits de l'Homme v Mauritania», it found that the eviction of Black
Mauritanians from their houses and depriving them of their Mauritanian citizenship
was a violation of Article 12(1).
218.
The Commission also bears in mind that it had interpreted the right to movement as
including a right to 'travel to, reside ip, and/ or v\rork in, any part of the State the
citizen wishes, without interference [fom the State'86. In Sir Dawda K. [auiara v
Gambiat", it held that restricting the travel outside the Gambia of former
government officials and parliamentarians violated their right to freedom of
movement under Articles 12(1) and (2) of the African Charter. Similarly, in
Movement burkinabe des droits de l'Homme et des peuples v Burkina Fas088, the
Commission found that preventing the secretary general of a political party in
Burkina Faso from leaving his country after publishing a statement on the situation
in the country, W:hichdid not constitute a threat to public security or morality, was a
violation of Article iz !Purfhermore, in Law Offices of Ghazi Suleiman v Sudani", it
held that restricting an individual's freedom of movement not only impact that
particular person but may seriously discourage others from contributing to
promoting and protecting human rights.
83 African
Union Convention for the Protection and Assistance ofInternally Displ
mpala
Convention), Article l(k)
<to \
84 African Union Convention for the Protection and Assistance of Internally Displjced
ers~.ri:'·Afn
.aJ;K _ ala
Convention), Article 3(la and b)
',;i
~...)~./
~ ~,
85 Communication
Nos. 54/91, 61/91, 98/93,164/97 it 196/97 and 210/98 (2000), ~a'
i AfrA£,an,AsspcJAti....land
Others v. Mauritania, African Commission on Human and Peoples' Rights, para l26 -':"'s
/ ,?Q
..
86 See Communication
279/ 03- 296/ OS,
'\
,;:,)\
f,-"""',.i
Evictions (COHRE) v Sudan, 27 May 2009, para 187.
' "'~ '" 1:,.( r' ' ," <'\ /~."
87 Communication
147/95- 149/96, Sir Dawda K. Jawara v Gambia (The), para 70.
~~,:,:,:=~?'
88 Communication 204/97, Movement burkinabe des droits de I'Homme et des peuples v Burkina Faso,
para 47
89 Communication 228/ 99, Law Offices of Ghazi Suleiman v Sudan, 29 May 2003, para 65.
l
..
",,-~
..:.:-;.'::1.. \)'"
77lh
Ordinary Session of the ACHPR
40
219.
Therefore, in casu, the Commission concludes that the forceful eviction of the
Complainants from their place of habitual residence by the Military police of the
Respondent State, forcing them to live in hiding due to threats of further violence if
they returned, violates Article 12(1) of the African Charter. Also, the seizure of the
Passport of the Complainants' lawyer, and banning him from travel outside his
country, violates his right to freely leave his country, and thus a violation of Article
12(2) of the African Charter.
Alleged violation of Articles 7 and 26
220.
Article 7 of the African Charter stipulates that every individual shall have the right
to have his cause heard. This comprises:
a) The right to appeal to competent national organs against acts violating his
fundamental rights ...;
b) the right to be presumed innocent until proved guilty by a competent court or
tribunal;
"~i~,:~~;_,iJl
'
' ~ .. ""
c) the right to defense, including the right to"be defended by counsel of his
choice;
d) the right to be tried within a reasonable t~meby an impartial court or tribunal.
It also provides that no one may be condemned for an act or omission which did
not constitute a legally punishable offence at the time it was committed, no
penalty may be inflicted for an offence for which no ,provision was made at the
time it was committed, and that punishment is per$Qnal and can be imposed
only on the offender.
221.
Article 26 provides, "State Parties to the present Charter shall have the duty to guarantee
the independence of the Courts and shall allow the establishment and improvement of
appropriate national institutions entrusted with the promotion and protection of the rights
and freedoms guaranteed by the present Charter;"
222.
The Commission has held that Article 26 is 'inextricably linked' to the right to a fair
trial in Article 7,90 that if'ls 'the necessary appendix of Article 7',91 and that Article 7
is 'complemented by' the duty'
Article 26.92 It will therefore in this case, proceed
to examine the claims on the violation of these rights, in this light.
in
223.
With reference to Article 7, the Complainants claim that the Respondent State has
denied them the right to be heard. They contend that they were obstructed by the
military policefrom getting an order from the Senior Public Prosecutor to have their
cause heard by a competent court, and allege that this constitutes a prima facie
violation of Article 7 (1) of the African Charter.
224.
They further carp that the demolition of their house and destruction of properties,
the seizure of their lawyer's passport, the travel restriction on him, and the
punishment given to him were not authorized by law and not declared by the
judiciary in a fair trial and therefore violates Article 7 (2) of the Charter.
41
225.
The Commission bears in mind that it had further spelt out the components of fair
trial in its soft laws'" and jurisprudence, and that it applies to everyone. These
include entitlement to a fair and public hearing by a legally constituted competent,
independent and impartial judicial body, in the resolve of any criminal charge
against a person, or of a person's rights and obligations'". Also the Commission has
stated that access to justice or the court requires that accused persons be brought
promptly before the Court'", and that States 'take the necessary measures to
facilitate the effective access to justice of women and girls towards putting an end to
impunity and ensuring that the perpetrators and accomplices of such acts are
prosecuted before the competent courts within a reasonable time'?",
226.
In Mr Mamboleo M. Itundamilamba
v Democratic Republic of Cong097, the
Commission held that States are obligated to take all appropriate measures to
ensure that justice is delivered by a competent, independent and impartial court or
tribunal; that justice should be fair and adversarial, and further that non-compliance
to this obligation to produce result, cannot be justified by any reason whatsoever
and if the result is not achieved, the State is at fault. The Commission also took
similar stand in another case brought to itinregard of violation of this right98.
.
,
'
227.
The Commission also recalls its finding in The Constitutional Rights Project v.
Nigeriai", a case that alleged that the accused and their counsel were constantly
harassed and intimidated during the trial, ultimately forcing the withdrawal of the
defense counsel, wherein it had concluded that depriving the victims of their right
to defense violated Article 7(1) of the African Charter.
228.
The Commission considers that the Complainants made several written complaints
to the Office of the Inspector General of the Police of the Respondent State, the
Minister of land and housing, the Undersecretary of the Ministry of Justice, the
Head of Public Prosecution in the Central Equatorial State, and in particular the
Minister of Interior, who in terms of Article 155(6) of South Sudan's Constitution
had the power to among others, ensure that the case was brought to court.
229.
The Commission notes the fact that the Complainants' lawyer was arrested in
attempt to force him to withdraw from the case, that there were blockages of the
legal proceedingsinitiated by the Complainants. It considers especially the fact that
the units of the Armed' 'forces who perpetrated the violations enjoy general
immunities' as a result of which legal proceedings against them is subject to
approval of their superiors, and that the Complainants could .not approach the
Courts directly due to Section 5 of the Police Act which limits the liability of the
Police. The Commission therefore finds that all these compromises fair trial.
230.
As touching Article 26, the Complainants allege that the Respondent State's
government system of checks to prevent human rights violations is flawed and
ineffective, and that the Constitution of South Sudan has no provision for the
effective enforcement of the Bills of Rights which is a guarantee of compliance with
the Charter.
231.
They also contend that there is no effective constitutional supervisory jurisdiction
for the courts to compel the Executive branch to adhere to the constitution and
protect and uphold the provisions of the Charter, contrary to the obligations placed
on States by Article 3(h) of the Constitutive Act of the African Union. The
complainants aver that the Respondent State violates Article 26'9£ the Charter by not
allowing the establishment and improvement of appropriate national institutions
entrusted with the promotion and protection of the rights and freedoms guaranteed
in the Charter.
232.
The Commission acknowledges that it may not totally rely dn"fhe Complainants'
allegations to determine whether or' not the State has complied to its duties to
protect the courts, it will therefore draw its conclusions suo motu. In this regard, the
Commission notes that it had found a vi9lation of Article 26 in a case wherein it was
alleged that 'procedural defiqiencies" ha'd,;,deprivedthe victims of an 'effective and
impartial investigationJ'f Also in Tsatsu Tsikata v. Republic of Ghana, the
Commission found that a series of measures taken by the government amounted to
interference in the independence ofthe'judiciary.i'"
,,'·::)·;",,;;1
~<~L<~r;
'_
~
233.
The Complainants in this case state ';that the Transitional Constitution of the
Respondent State lacks provisions such as mandamus and certiorari, to enable
individuals to apply to the Courts to enforce their Constitutional rights; and that the
Constitutional remedy provided for in Article 306 of the Constitution is a civil
remedy and cannot effectively address a case of criminal nature which can only be
determined after completion .of a criminal investigation by the Police, of which the
Complainants complain had' blocked the case.
234.
Bearing in mincf'the conv.etgence between Article 7 that deals with the right of the
individual, and Article 26 which focuses on 'the institutions that are indispensable
to give meaning and content to that right, the Commission is of the view that where
the national laws of a State has procedural flaws that inhibits the State from
fulfilling its obligation in this regard, violation of Articles 7 and 26 will result. In
this case therefore, the Commission finds violation of Articles 7 and 26 of the
African Charter by the Respondent State.
freedoms and rights as well as corresponding
understood.
obligations and duties are
236.
The Complainants contend that the Respondent State failed to "address issues of
land grabbing and other malpractices involving land 11 as provided for in the
Resolution of Conflict Agreement on South Sudan102, and to permanently prevent
individual members of the military from abusing their military powers by violently
confiscating civilian land. They assert that by such inaction, the Respondent State
has not complied with the provisions of Article 25 of the African Charter.
237.
In this regard, the Commission recalls its resolve that human rights education is an
important prerequisite for the effective implementation of the African Charter on
Human and Peoples' Rights and other international human rights instruments'w,
and that it had re-iterated this stand point through its Special Mechanisms and in its
soft law instruments'v', affirming that States are obligated to include human rights
at all stages of education programs, whether/they be public..or private, from
kindergarten to tertiary level institutions, and ihithe training of law enforcement
officials the medical profession, public officials and others who may be involved in
the custody, interrogation or treatment of any individual subjected to any form of
arrest, detention or imprisonment.
238.
Although the Commission admits that the information made available to it does not
allow it to establish with certainty that human rights education has not been
included in all levels of South Sudan's education system, it does nevertheless
identify that at the heart of the various abuses alleged in this Communication, is the
question of the domination of the Military Force of South Sudan on not only the
Complainants, but also on the State Police and Judiciary. The Commission therefore
bears that the stated violations which are a negation of the fundamental principle of
the rights stipulated in the African Charter, stem from the inaction of the State
towards educating its security officials on human rights and therefore constitute a
violation of Article 25 and consequently Article 1 of the African Charter.
Decision of the Commission on the Merits
239.
In view of the above reasonings and findings, the Commission:
(i)
Finds that the Respondent State is in violation of Articles 2, 3, 5, 6,
7,,10, 12(1&2), 14, 16(1), 18(1&3), 25, and 26 of the African Charter;
(ii)
Finds no violation of Articles 4, and 8 of the African Charter;
(iii) Requests the Respondent State to drop all forged criminal charges
against the Complainants' lawyer;
(iv) Requests the Respondent State to ensure that the ban on the
Lawyer's travel be lifted and that his Passport be returned to him;
(v)
Urges the Respondent State to promptly and independently
investigate, prosecute, and punish all State actors responsible for
the violations contained in this Communication;
(vi) Urges the Respondent State to ensure that the property of the
Complainants is returned to them and provide them redress for
prejudices suffered in relation to the violations found;
(vii) Urges the Respondent State to continue to provide comprehensive
training in human rights for all law enforcement officials, including
all levels of the police and judiciary;
(viii) Requests the Respondent State to report to the Commission within
180 days on the measures adopted to implement the above
recommendations, in accordance with Rule 125(1) of the Rules of
Procedure of the Commission (2020). ~0" HU"~>\!
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November 2023
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