The largest country in Africa prior to the secession of South Sudan, Sudan is a land of contrasts. Half of the country is covered by the vast Nubian and Libyan Deserts, while its major cities are nestled along the fertile Nile Valley. A majority Muslim and Arab nation, the Sudanese legal system has vacillated between sharia and secular law throughout the nation’s history.
Sudan’s history is characterized by a centuries-old tension between its North and South regions. Unlike the North, which would become present-day Sudan, the majority of Southern Sudan has never been Muslim or Arab. Its richly diverse population includes 64 tribes. Southern Sudan retained its distinct identity through the centuries thanks to a natural border of rivers preventing extensive contact with outsiders.
Islamic Law Under the Mahdi State
North and South Sudan were first brought together under Turko-Egyptian colonial occupation from 1820 to 1882, which established the borders of the pre-secession independent Sudan. During this period, the government and jellaba (urban Arab traders from the North) vastly expanded Sudan’s pre-existing slave trade. Thousands of troops were sent to raid the South. Approximately two million Southern Sudanese, mainly of the Dinka tribe, were captured and sold into slavery during this time.
In 1882, Northern Sudanese launched a revolt against Turko-Egyptian rule, led by Mohammed Ahmed ibn al-Sayyid, known as the Mahdi (holy savior). By 1885, the Mahdi coalition captured the capital city, Khartoum, and established an independent state. A strictly Islamic movement, the new Mahdi state implemented Islamic law across the country, angering the largely non-Muslim South. The slave trade also continued during this period, further entrenching the North’s power over all of Sudan.
Anglo-Egyptian Rule and Independence
The Mahdi state lasted just under two decades; determined to control all of Eastern Africa, British and Egyptian troops conquered Sudan in 1898. During the first half of the 20 th century, Sudan was then ruled as a condominium state under a mixture of Anglo-Egyptian rule. While “in theory Egypt shared a governing rule,” British officials retained de facto control of the territory. The British focused their infrastructure projects in the North, building irrigation dams and cotton farms. Residents in the North additionally received access to higher education and positions in the British administration. By contrast, the South was left largely ignored and undeveloped. Indeed, the South was administered as a separate province until 1946, and trade with the North was discouraged.
Momentum towards an independent Sudan began with the 1952 Egyptian Coup d’état, which led Egypt to renounce its claims over the territory the following year. While the British continued to rule Sudan for another three years, incompetent administrative policies and rising political unrest made their hold on Sudan increasingly tenuous. In 1953, the British allowed Sudan to hold a national referendum on independence. Following a majority vote for independence, Sudan held parliamentary elections and formally declared independence on 1 January 1956.
Re-emergence of Islamic Law
The legacy of British infrastructural policy, compounded on centuries of the North fighting against the marginalized South, planted seeds of division within the newly independent Sudan. Just six months prior to independence in August 1955, the first rumblings of conflict erupted in the Torit Mutiny. In Sudan’s southernmost province, Equatoria, local soldiers and police launched an uprising against northern administrators in the village of Torit. Civilians quickly joined in, and the uprising turned into wide-scale riots, ultimately killing 261 people. The ruling Northern government sent in troops to quell the Mutiny at the end of August, arresting many of the rioters and ultimately executing at least 121 of them. The Torit Mutiny marked the beginning of the First Sudanese Civil War, which lasted from 1955 until 1972 with the signing of the Addis Ababa Agreement. The Agreement created the Southern Sudan Autonomous Region, enabling Southern Sudan to run its own police, legislature, and executive body.
Sudan began shifting towards Islamic law in the 1970s, when President Jaafar Nimeiry first declared Sharia law throughout the country and terminated the SSAR. The move inflamed the predominantly Christian and animist South, leading to the formation of the Sudan People’s Liberation Army under career soldier Dr. John Garang de Mabior.
The Second Sudanese Civil War officially began on 16 May 1983, pitting the SPLA against the northern-dominated government forces. In the midst of what would become a 21-year civil war, the Revolutionary Command Council for National Salvation led yet another coup in June 1989.
While its highest-ranking members were all officers in the Sudanese military, the Council was also backed by the National Islamic Front, a political movement seeking to build an Islamic state. Under strongman President Omar Hassan al-Bashir, sharia law was implemented across the country. Alcohol was banned and apostasy became punishable by death. Additionally, Sudan implemented a traditional set of punishments under Islamic law called hudud. Hudud punishments include cutting off the hand for thievery andstoning to death for illicit sexual relations.
The conflict in Sudan was thrust into the international conscience in the early 2000s, following reports that Arab militias from the North were carrying out genocide against non-Arabs in the region of Darfur. Approximately 200,000 people were killed in the Darfur crisis, while two million more fled across the border to Chad.
The war raged on until the 2005 Comprehensive Peace Agreement between the Government of Sudan and the Southern Sudan-based Sudan People’s Liberation Movement. However, the Agreement failed to end the bloodshed, causing the UN Security Council to send in 26,000 peacekeepers in July 2007. In 2009, the International Criminal Court in The Hague issued an arrest warrant for President al-Bashir “on charges of war crimes and crimes against humanity in Darfur.”
The 2005 Agreement called for a referendum on Southern Sudan’s independence, which was finally held in January 2011. A staggering 99.57% of Southern Sudanese voted for independence, marking the end of “Africa’s longest-running civil war.”
2019 Coup and Transition to Secular Law
President al-Bashir maintained an iron grip on Sudan until 2019, despite facing multiple ICC arrest warrants and international sanctions. Despite years of bloody warfare, it was not guns, but bread, which finally ended al-Bashir’s thirty-year rule. In December 2018, the government announced that it was reducing subsidies for basic goods including fuel and bread, sparking nationwide protests. Following months of mass protests, the military removed al-Bashir from power on 11 April 2019. He was arrested and convicted of corruption in 2019. Al-Bashir is currently standing trial for his role in the 1989 coup, and faces the death penalty if convicted.
Sudan is now in the process of reorganizing its political and legal system after thirty years of dictatorship. In September 2019, Prime Minister Abdalla Hamdok took office under a power-sharing agreement between the military and protest leaders.
The Sudanese government has since begun a shift away from sharia law. In July 2020, Justice Minister Nasredeen Abdulbari announced that bans on alcohol and apostasy had been lifted. However, the move has highlighted a complex generational divide between the younger generation, which is “significantly more likely to favor a limited role for religion,” and the older generation, which supports the continued usage of sharia law.
Sudan has a population of approximately 45.5 million. Seventy percent of Sudanese identify as Arab, and Sunni Islam is the dominant religion. However, it should be noted that “the concept of ethnicity in Sudan is closely related to language and religion.” Arabic-speaking Muslims are likely to self-identify as Arab, although they are “ethnically mixed, and many of them are physically indistinguishable from those who do not consider themselves Arabs.” Arab Sudanese closely identify with their local tribe, which can be clustered in two major groupings: the Jalayin and the Juhaynah. The Jalayin have traditionally settled along the Nile as farmers. The Juhaynah were historically nomadic camel and cattle herders, although many have established permanent residences in recent times. Non-Arab, Muslim communities include the Nubians, who are clustered around the Nile in the northernmost part of Sudan, the nomadic Beja in the Red Sea Hills, and the Fur in the Marrah Mountains. Non-Muslim Sudanese predominantly live in the south or the centrally located capital, Khartoum. These groups include the Dinka and Nuba people. The official working languages of Sudan are Arabic and English. Arabic is most commonly spoken in daily life. Smaller ethnic groups speak a plethora of local languages, but “the vast majority of Sudanese have become multilingual,” learning Arabic as a lingua franca throughoutthe country. Sudan is a relatively rural country; only a third of its population reside in urban areas. An exceptionally young nation, over seventy percent of Sudanese were under thirty years old as of 2017.
South Sudan’s legal system is still in its nascent stages, and many of its current laws, such as the 2008 Code of Criminal Procedures Act (“CCPA”), date back prior to independence. It has a common law system in part derived from its British colonial past. The legal system comprises the constitution, national legislation, state legislation, and customary laws. In cases of conflict, national law supersedes state. The current Constitution (“Con.”) was written as a transitional document in 2011 and has not yet drafted a permanent one. The legal system suffers from a lack of resources and human capital, resulting in “a significant backlog of cases.” As of 2013, there were only 124 statutory judges in the entire country. Both the CCPA and the 2008 Judiciary Act (“Jud.”) outline the criminal court system. There are three tiers of county-level courts of first instance for civil and criminal matters, although “there is no internal appellate hierarchy among the lower courts.” Tiers are determined based on punitive capabilities, and all appeals are sent directly to the High Court. The lowest tier is the Third Class Payam Courts, which can hand out fines up to 300 SouthSudanese Pounds (“SSP”) and sentence convicted parties to up to a year in prison. While established by Section 15 of the CCPA, there are currently no functioning Payam Courts in thecountry. Second Class Magistrate Courts are authorized by Section 14 of the CCPA to pass prison sentences of up to three years and fines of up to 2500 SSP. First Class Magistrate Courts, created by Section 13 of the CCPA, can pass sentences of up to seven years and fines of up to 5000 SSP. Both First and Second Class Courts “are not fully in place, due in part to a lack of sufficient judges.” Decisions from each of these courts can be appealed to the state-level High Court. In addition tohearing appeals from the county-level courts, the 2007 Civil Procedure Act and CCPA provideHigh Courts with original jurisdiction over serious criminal and civil matters, including deathpenalty cases. From the High Court, cases can then be appealed to the Courts of Appeal. There are three Courts in South Sudan, divided into the Greater Equatoria region, the Greater Bahr al Ghazal region, and the Greater Upper Nile region. Each Court is required to three to four justices under Articles 12 and 13 of the Judiciary Act. The Supreme Court is the final court of adjudication in the country. While the Constitution calls for at least nine justices, only seven currently sit on the bench. 32 In addition to determining constitutional questions as a full body, the Court convenes in smaller three-person panels for civil and criminal matters. It is required to review all death sentences. The Court is headed by a President, currently Justice John Wol Makec. In addition to the statutory legal system, the 2009 Local Government Act (“LGA”) recognizes local customary law courts which can adjudicate civil cases based on “the customs, traditions, norms and ethics of the communities.” 34 Statutory courts may also refer criminal cases to customary courts. Given that statutory courts “are inaccessible for many people, because of their prohibitive cost, their unfamiliar procedures, and their use of languages that people do not know,” customary courts handle approximately 90% of disputes nationwide. As customary courts pass judgment based on local norms, procedure may vary greatly depending on location and tribal affiliation. Courts are often characterized by a greater degree of negotiation between parties than in European or American systems. Most decisions are announced verbally, and the lack of a binding written precedent enables customary court judges to pass sentences with little oversight or consistency. South Sudan also has an independent system of Police Courts to review civilian complaints against the police and criminal acts committed by the police “while discharging official duties.” Both the Second Sudanese Civil War and the more recent civil war within South Sudan have resulted in a massive number of human rights abuses, including extrajudicial killings, sexual violence, and torture. To address these atrocities, the 2015 Agreement on the Resolution of the Conflict in the Republic of South Sudan (“AGRC”) proposed the creation of the Hybrid Court for South Sudan (“HCSS”) to handle internationally recognized crimes (including genocide, war crimes, and crimes against humanity) committed from 15 December 2013 onwards. The HCSS would be jointly administered by the South Sudanese government and the African Union. The African Union Commission would be responsible for the “location, funding, infrastructure, enforcement and personnel” of the court, and submitted a draft statute to South Sudan in 2017. The majority of judges and all prosecutors and other staff would be from other African nations. However, South Sudan’s government has repeatedly delayed attempts to set up the HCSS. As of August 2020, the HCSS has yet to be established. Amnesty International notes that the South Sudanese legal system regularly faces interference from the executive branch. President Salva Kiir may reject military court decisions, “giving him veto powers over what is supposed to be an independent judicial process.” Moreover, Kiir has violated the Constitution’s separation of powers on at least two occasions by dismissing civilian judges. In 2015, he issued a blanket amnesty to armed forces involved in a December 2013 attack in Juba. In May 2017, all South Sudanese judges nationwide went on a five-month strike to protest poor working conditions and pay. In November 2017, Supreme Court judge Kukurlopita Marino Pitia resigned in protest at executive interference into the Court, stating that “the independence of the judiciary… has become a mockery.”
South Sudanese law stipulates the right to be defended by a pleader in all cases (CCPA Sec.184). A pleader is defined as “any advocate authorized generally to practice before the criminal courts of Southern Sudan” (CCPA Sec. 182). The accused has the right to legal aid from the government if they cannot afford one “in any serious offense” (Con. Art. 19). However, “serious offense” is not formally defined. There is no current state-sponsored legal aid system within South Sudan. A 2012 visit by the International Commission of Jurists found that only one private law firm in the capital, Juba, offered pro bono legal aid. 44 The United National Development Programme’s Access to Justice and Rule of Law project worked with the South Sudan Law Reform Commission to draft the 2018 Legal Aid Bill, which aimed to develop a legal aid infrastructure within South Sudan. As of August 2020, the Bill has not been passed. Legal aid in South Sudan is primarily administered through local and international NGOs, including the South Sudan Law Society, the International Development Law Organization, the Initiative for Peace Communication Association, and the Humanitarian Development Consortium. In 2014, the International Commission of Jurists found that there were approximately 400 lawyers at the South Sudanese Ministry of Justice and over a hundred in private practice. More recent estimates are not available.
Sources of Defendants’ Rights
A defendant’s rights are protected by the Transitional Constitution and the CCPA. Article 19 of the Constitution enumerates the defendant’s right to a fair trial, which is explained in greater depth below. The Constitution states that “all rights and freedoms enshrined in international human rights treaties, covenants and instruments ratified or acceded to by the Republic of South Sudan shall be an integral part of this Bill” (Con. Art. 9). South Sudan has ratified the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the Geneva Conventions. South Sudan has not joined the International Criminal Court.
The 2010 National Security Act (“Nat. Sec.”) regulates the appointment of police officers, their responsibilities, and disciplinary procedures against them. The 2009 Southern Sudan Police Services Act (“SSPSA”) regulates the conduct of police officers. SSPSA Section 51 states that “any act done by police personnel in good faith while discharging his or her funcitons and duties… shall not constitute an offence.” Additionally, “no police personnel shall be arrested for or charged with murder in connection with acts committed in the course of his or her duty, except with a written authorisation obtained from the President in the case of officers, or a written authorisation from the Minister or Inspector General in the case of non- commissioned officers and privates” (SSPSA Sec. 51).
CCPA Section 34 states that “A criminal case shall be initiated, upon taking cognizance by the police under the directive of the Public Prosecution Attorney, Magistrate or Court.” Complaints may be presented by the person who had an offense committed against them or “within whose responsibility an offense has been committed” (CCPA Sec. 35). Complaints may also be presented by the guardian of a child (a “juvenile”), physically disabled individual (an “invalid”), or mentally disabled individual (an “idiot” or “lunatic”) (CCPA Sec. 35). The Public Prosecution Attorney may choose to prosecute the criminal case, refuse to do so, or dismiss the case. This decision may be appealed to their direct senior (CCPA Sec. 36).
The Public Prosecution Attorney (“PPA”), Magistrate or Court may issue a warrant of arrest for a person who they witness committing an offense or “against whom a case for the commission of an offence has been instituted” (CCPA Sec. 75). Any police officer may arrest any person if they have a basis for believing the individual is detainable under CCPA Sec. 76. Arrest warrants may also be issued “if breach of peace is likely” (CCPA Sec. 143). Private persons may conduct arrests under the terms of CCPA Section 77. They must then take the person to the nearest police station “without unnecessary delay,” where it will then be determined if the police shall re-arrest the person or release them from custody (CCPA Sec. 91). The police may use “all reasonable means necessary to effect the arrest” (CCPA Sec. 87). Upon arrest, the arrested person must be informed of the reason for their arrest and any charges against them (Con. Art. 19(2)). All arrested persons must be brought to the Public Prosecution Attorney, Magistrate or Court within 24 hours of arrest (CCPA Sec. 83).
Search and Seizures:
CCPA Section 95 outlines the procedure for the search of arrested persons. If the arrested person is a woman, the search must be conducted by a female officer (CCPA Sec 95(3)). Chapter IX of the CCPA outlines provisions related to summons, search, seizure, and confiscation. Search warrants may be issued by the PPA, Magistrate or Court (CCPA Sec. 104). Searches must be conducted in the presence of two reliable witnesses unless otherwise determined by the PPA or Magistrate (CCPA Sec. 107(1)). The occupant of the searched place is permitted to be present at the search (CCPA Sec. 108). The police “may seize any property which is alleged or suspected to have been stolen” (CCPA Sec. 114). Property seizures must be reported to the PPA, or in their absence a Magistrate or Court, who shall determine the person entitled to the property (CCPA Sec. 115). If no claimant to stolen property appears within six months, the property may be sold by the police (CCPA Sec. 116).
An arrested individual may be held up to 24 hours as part of an investigation, after which they must be presented in court to be remanded to prison or released on bail (Con. Art. 19(4)). However, the CCPA Section 64 allows for the Public Prosecution Attorney or Magistrate to renew detention of an arrested person for up to two weeks “for the purposes of investigation.” In practice, the lack of sufficient statutory judges in South Sudan “has meant that the length of detention of people detained pending trial may be prolonged, in a manner that is inconsistent with their rights, including their rights to liberty.”
Enforcing the Rules:
Magistrates may not record confessions unless “after questioning the person making it, he or she is satisfied that it is made voluntarily” (CCPA Sec. 61). CCPA Section 194 states that “the admission of evidence in every judicial proceeding under this Act shall be made in accordance with the provisions of the Code of Evidence.” The 2006 Code of Evidence Act (“CEA”) outlines the standards of admissibility for different types of evidence. The Court may ask the party presenting evidence “in what manner the alleged fact, if proved, would be admissible” (CEA Sec. 145). A witness’s credibility may be impeached by testimony of persons who personally know the witness, proof that the witness has been bribed, proof of former statements inconsistent with their evidence, or when a man is prosecuted for rape “it may be shown that the alleged victim was of generally immoral character” (CEA Sec. 164). Improper admission or rejection of evidence is not ground for a new trial if it appears to the Court that there was independently sufficient evidence to justify the Court’s decision (CEA Sec. 176).CEA Section 49 states that any party to a suit or other proceeding may show that any judgment, order or decree which is admissible under the provisions of this Act and which has been proved by the adverse party, was delivered by a court not competent to deliver it, or that it was otherwise obtained by fraud or collusion.”
CCPA Section 63 permits the taking of fingerprints, eye prints, and photographs during interrogations, investigations, and trials. These files may be kept for up to six months, after which “they shall be destroyed, unless the person concerned has been convicted of an offense” (CCPA Sec. 63).
The police may not “make use of any threat or of any promise of an advantage… in order to influence the evidence he or she may give” (CCPA Sec. 60). The police also may not prevent any person from freely making a statement (CCPA Sec. 60). CCPA Section 61 governs the procedure for judicial confession. Magistrates may not record confessions unless “after questioning the person making it, he or she is satisfied that it is made voluntarily” (CCPA Sec. 61).
Rights of the Accused
Right to Counsel:
Article 19(7) of the Constitution states that, “Any accused person has the right to defend himself or herself in person or through a lawyer of his or her own choice or to have legal aid assigned to him or her by the government where he or she cannot afford a lawyer to defend him or her in any serious offense.” 56 A serious offense is not clearly defined in the Constitution. An arrested person may always contact their advocate (CCPA Sec. 93(2)).
A person who has been acquitted of an offense may not be tried again for the same offense on the basis of the same facts, “or for any other offence for which a different charge from the one made against him or her might have been made” (CCPA Sec. 48(1)). However, a person who has been acquitted of an offense may be “subsequently charged with and tried for any other offence constituted by the same acts which he or she might have committed, if the Magistrate or Court by which he or she was first tried was not competent to try the offence with which he or she is subsequently charged” (CCPA Sec. 48(3)).
Article 19(5) of the Constitution states that “no person shall be charged with any act or omission which did not constitute an offence at the time of its commission.” The 2008 Penal Code Act outlines offenses under South Sudanese law.
Presumption of Innocence:
Article 19(1) of the Constitution states that “An accused person is presumed to be innocent until his or her guilt is proved according to the law.”
Standards of Proof and Conviction:
The admission of evidence in judicial proceedings must be conducted “in accordance with the provisions of the Code of Evidence” (CCPA Sec. 194). The CEA outlines standards for evidence. 58 The burden of proof lies with the person bound to prove the existence of a fact, and the plaintiff “must prove, to the satisfaction of the court, that those facts exist” (CEA Sec. 109). All evidence in trial “be taken in the presence of the accused,” and it shall be recorded “in English or when necessary, in any other language prevalent in the Southern Sudan” (CCPA Sec. 196). CCPA Section 6(b) states that “every accused person is presumed innocent until his or her guilt is proved beyond reasonable doubt.” Conviction judgments must “specify the offense of which and the section of the Penal Code or any other law under which the accused is convicted” (CCPA 249(2)).
No police officer or “person in authority shall make use of any threat or of any promise of an advantage towards any person… in order to influence the evidence he or she may give” (Sec. 60 CCPA). No police officer or other person “shall prevent any person… from making, in the course of the investigation, any statement, which of his or her own free will, he or she may be induced to make” (CCPA Sec. 60). Every witness giving evidence in a trial must take an oath to “say the truth, the whole truth and nothing but the truth” (CCPA Sec. 193). CCPA Section 195 states that “The Court shall prevent the putting of irrelevant questions to the witnesses and shall protect them from any language, remarks or gestures likely to intimidate them.” In cases tried exclusively by a High Court or punishable with a prison sentence which may last seven years, the Public Prosecuting Attorney may pardon a person with information concerning an offence on the condition that the person makes “full and true disclosure of the whole of the circumstances within his or her knowledge relating to such offence” (CCPA Sec. 199). CEA Chapter VII outlines the competency, compellability, privileges, and examination of witnesses.
Article 21 of the Constitution states that, “No death penalty shall be imposed, save as punishment for extremely serious offences in accordance with the law.” The death penalty may not be imposed on persons under eighteen or at least seventy (Con. Art. 21). The death penalty may not be executed on pregnant or lactating women until after two years of lactation (Con. Art. 21). All death penalty cases must be reviewed by the Supreme Court of South Sudan. The death penalty may be applied to crimes including murder, terrorism that results in death, drug trafficking, and treason. 59 Executions are commonly conducted by hanging. 60 As of 3 June 2019, there are at least 345 people on death row in the country.
Ex Post Facto Punishment:
Article 19(5) of the Constitution states that “no person shall be charged with any act or omission which did not constitute an offence at the time of its commission.”
Fair Trial Rights
Freedom from Prolonged Pre-trial Detention:
If an arrested person is charged, a Magistrate may order that their detention be renewed every week for a period that cannot exceed three months (CCPA Sec. 64(4)). A Magistrate may order that the detention of the accused for the purpose of trial be renewed “weekly for a period, not exceeding, in total, one month; provided that, the period of detention shall not, in total, exceed six months, except with consent of the President of the Court of Appeal concerned” (CCPA Sec. 100).
Torture and Punishment:
Article 18 of the Constitution states that “no person shall be subjected to torture or to cruel,inhuman or degrading treatment or punishment.”
Right to Counsel:
CCPA Section 184 states that, “every person accused before any Court under this Act, may as of right, be defended by a pleader.” In the case of a serious offense, the accused may apply to the Minister of Legal Affairs and Constitutional Development to “appoint an advocate to defend the accused and pay all or part of the cost.” A serious offense is not defined in either the CCPA or the Constitution. A pleader is defined as “any advocate authorized generally to practice before the criminal courts of Southern Sudan” (CCPA Sec. 182).
Right to Habeas Corpus:
The Public Prosecution Attorney, Magistrate or Court may order the production of a detained person or their immediate release upon receiving a complaint of “unlawful detention” (CCPA Sec. 102). CCPA Section 302 states that “when any person causes the arrest of another person and it appears to a Magistrate or Court by whom the case is investigated into or tried that there was no sufficient grounds for causing such arrest,” the Magistrate or Court may order the person causing the arrest to pay compensation not exceeding 100 Sudanese Pounds and may order the person be imprisoned for up to thirty days. A detainee has “the right to resort to court if kept in custody or detention” for longer than is allowed by law (Nat. Sec. Act Art. 51). Right to Medical Care:
In cases of death or serious injury, the officer-in-charge of the responding police station “shall arrange, if possible, for a medical officer the examine the body or the person injured” (CCPA Sec. 59). If directed by the police, the body or injured person shall be brought to the nearest hospital (CCPA Sec. 59). CCPA Section 62 allows the police to require arrested persons “to submit to a medical examination by a registered medical practitioner.”
Right to a Fair Trial:
Article 19(3) of the Constitution states that “In any civil and criminal proceedings, every person shall be entitled to a fair and public hearing by a competent court of law in accordance with procedures prescribed by law.”
Right to Notice of Charges:
Article 19(2) of the Constitution states that “Any person who is arrested shall be informed, at the time of arrest, of the reasons for his or her arrest and shall be promptly informed of any charges against him or her.”
Right to Non Self-Incrimination:
CCPA Section 6(c) states that “no accused person shall be forced to incriminate himself or herself.” The accused is not “liable to punishment by refusing to answer… questions,” however, “the Court may draw such inference from such refusal or answers as it deems just” (CCPA Sec. 197(2)).
Right to a Speedy Trial:
Article 19(6) of the Constitution states that “every accused person shall be entitled to be tried in his or her presence in any criminal trial without undue delay; the law shall regulate trial in absentia.” CCPA Section 6(a) states that “every accused person shall have the right of a fair and speedy trial, and justice shall not be delayed.”
Right to a Trial by Jury:
Neither the CCPA nor the Constitution include a right to trial by jury.
Right to Impartial Judge:
Article 19(3) of the Constitution states that “In any civil and criminal proceedings, every person shall be entitled to a fair and public hearing by a competent court of law in accordance with procedures prescribed by law.” Article 124 of the Constitution states that “The Judiciary shall be subject to this Constitution and the law which the Judges shall apply impartially and without political interference, fear or favour.”
Right to Appeal:
If a conviction is “one from which may be appealed against, the presiding Magistrate shall inform the convicted person that he or she has a right to appeal” (CCPA Sec. 254). Except for offences which involve or are likely to cause a disturbance of the peace or an unlawful assembly, every defendant convicted by a High Court may submit a written appeal to a Court of Appeal (CCPA Sec. 261). Convicted persons in the First Class, Second Class, and Payam Courts may only submit written appeals “where a sentence is passed in excess of the penalties which such magistrates are competent to award” (CCPA Sec. 262). Petitions of appeal must be presented within fifteen days of sentencing (CCPA Sec. 263). No Court shall interfere with a previous judgment only on the basis of wrongly admitted evidence or procedural irregularities (CCPA Sec. 269).
Rights in Prison
Conditions of Confinement:
CCPA Section 93 states that “An arrested person shall not be subjected to any treatment against human dignity nor shall he or she be physically or morally abused.” The 2009 Southern Sudan Police Service Act (“SSPSA”) states that “any personnel, who intentionally commits an offence, while on duty as a guard of the accused, detained or remand person” and is convicted shall be sentenced to a prison term up to seven years, or a fine, or both (SSPSA Sec. 66). They may also face dismissal from the service (SSPSA Sec. 66). Any personnel convicted of neglecting their duty as a guard shall be sentenced to a prison term up to three years or a fine or both. They may also face dismissal from the service (SSPSA Sec. 67). Any personnel convicted of smuggling or attempting to smuggle a prohibited material into a detention center shall be sentenced to a prison term up to five years, or a fine, or both. They may also face dismissal from the service (SSPSA Sec. 73). Juvenile prisoners shall be separated from adult prisoners (Prisons Act Sec. 43).
The Prisons Act does not include any specific language on immigrant detention.
Right to Medical Care in Prison:
Nat. Sec. Act Article 51 states that “a detainee shall have the right to medical care.”
Mental Health Care:
If “there is reason to believe that the accused is of unsound mind and consequently incapable of making his or her defence” during a trial, the “trial shall be adjourned and the accused shall be referred for examination” to a specialized physician, who “shall report the result of such examination to the Court” (CCPA Sec. 206(1)). If the physician determines “unsoundness of mind,” the trial shall be adjourned until the accused has “sufficiently recovered to make his or her defence” (Sec. 206(2)). The Magistrate or Court shall determine the custody of the accused. If evidence demonstrates that an accused person was not of sound mind when committing an offense but is of sound mind at the time of trial, the Court shall “forward him or her to be dealt with” under Sec. 206 (CCPA Sec. 207).
Restriction of Rights:
Persons in custody have the right to inform their family or employer of their detention and to communicate with their family and advocate “if this does not prejudice the process of investigation” (Nat. Sec. Art. 51). The family shall have the right to visit the person in custody (Nat. Sec. Art. 51). A legal advisor appointed by the Minister of Justice “shall continuously search the detention facilities in order to ensure compliance with the detention regulations and receive any complaint from the detainees” (Nat. Sec. Art. 51). Persons in custody have the right to “obtain an additional portion of food… at his/her own expense” (Nat. Sec. Art. 51). Conditions in detentions shall ensure “safeguard of the detainees’ dignity” (Nat. Sec. Art. 51). Section 52 of the 2003 Prisons Act states that “every convicted prisoner shall be deployed in one of the labour units” to conduct hard or light labour.
Women’s Rights in Prison:
Nat. Sec. Act Article 51(5) states that “women detainees shall be placed only in detention facilities allocated for them. They shall be treated in a manner that is commensurate with their status as females.” Pregnant prisoners shall deliver their babies in civil hospitals (Prisons Act Sec. 48).
Initial Court Appearance:
The CCPA does not detail a procedure for initial court appearances.
Chapter XVII of the CCPA outlines the procedure for charges. Charges must include,
- a. A statement of the offence with which the accused is charged;
- b. The definition of the offence;
- c. The section of the law against which the offense is said to
have been committed (CCPA Sec. 233(3)). Charges shall be written in English “or when necessary in any other language prevalent in the area” (CCPA Sec. 233(4)). Charges shall contain “the time and place of the alleged offense and the person (if any) against whom, or the thing (if any) in respect of which the offence was committed” (CCPA Sec. 234).
The CCPA does not detail a procedure for preliminary hearings.
The CCPA does not detail a procedure for initial court appearances.
The defendant is free to cross-examine all witnesses for the prosecution (CCPA Sec. 225). The defendant may request that the Court compel the attendance of any witness or production of any document. The Court shall do so unless they record written reasons as to why they believe the request is “made for the purpose of vexation” (CCPA Sec. 230). The Court may question the accused without prior warning. The accused is not liable to punishment if they refuse to answer questions, “but the Court may draw such inference from such refusal or answers as it deems just” (CCPA Sec. 197). The answers given by the accused may be used as evidence in the trial and any other trials (CCPA Sec. 197). The CCPA does not specifically require the defense or prosecution to make collected evidence available prior to trial.
Nature of the Trial:
All Courts are open to the public, provided that the Magistrate may deny access to the public or specific persons at any stage of the trial (CCPA Sec. 181). A Court may hold a summary trial for offences for which the penalty is within the Court’s summary jurisdiction (CCPA Sec. 220). In a summary trial, the Court may hear the prosecutor’s statement, the defendant’s reply, the defence witnesses’ evidence, and then pass a decision (CCPA Sec. 221).
The defendant is granted the right to counsel (CCPA Sec. 184). A pleader is defined as “any advocate authorized generally to practice before the criminal courts of Southern Sudan” (CCPA Sec. 182). The accused has the right to have legal aid assigned to them from the government if they cannot afford one “in any serious offense” (Con. Art. 19). “Serious offense” is not formally defined. CCPA Section 191 states that “If the accused though not insane cannot understand the proceedings, the Court shall not proceed with the trial.” When evidence is presented in a language not understood by the defendant, “it shall be interpreted to him or her in a language that he or she understands” (CCPA Sec. 203). The defendant may cross-examine any witnesses (CCPA Sec. 229).
There is “no standardized procedure for admission to the bar presently in South Sudan.” CCPA Section 182 states that “any advocate authorised generally to practice before the criminal courts of Southern Sudan, may appear and act as pleader in any criminal proceedings.” The Magistrate or Court may “authorize any other person to act as pleader; provided that, a professional advocate not authorised generally to practice in the criminal courts of Southern Sudan shall not appear in any criminal proceedings without the sanction of the President of the Supreme Court” (CCPA Sec. 182). The 2008 Ministry of Legal Affairs and Constitutional Development Organization Act(“MLAC”) regulates the conduct and appointment of Public Attorneys, and staff of the Ministry of Legal Affairs and Constitutional Development. A person is eligible for appointment as a Legal Counsel if they are a citizen of South Sudan, hold an LLB. or similar degree from a recognized university, and have not been convicted by any court or board of discipline for an offense involving dishonesty or moral turpitude” (MLAC Sec. 46). Legal Counsel must retire at 65 years old unless their service is extended by the President (MLAC Sec. 50). The President may remove or retire Legal Counsel at anytime (MLAC Sec. 53). In the event that a Legal Counsel violates professional ethics,the Ministry shall form a Board of Discipline to conduct an investigations, hear evidence, and recommend disciplinary action (MLAC Sec. 57). All meetings of the Board shall be “in camera” (MLAC Sec. 59). The Minister, Under Secretary or Counsel General shall appoint the Board (MLAC Sec. 58). The disciplinary measures may be a reprimand, “deprivation from allowances and or promotion,” and removal from office (MLAC Sec. 61). Except when “found in the act of committing an offence, a Legal Counsel shall not be arrested or detained… except with the written consent of the Minister” (MLAC Sec. 64). Prosecution may be carried out by the Public Prosecution Attorney, any person appointed by them, or the Crime Police (CCPA Sec. 183). The Director of Public Prosecution may “intervene to remove the conduct of the prosecution from the complainant or his or her pleader and in such case, he or she shall direct by whom the prosecution shall be conducted” (CCPA Sec. 183).
The evidence of a physician under oath before a Magistrate in the presence of the accused may be used as evidence in any trial (CCPA Sec. 212). The Court may summon “such physician to appear before it as a witness” (CCPA Sec. 212). CCPA Section 213 allows for documents produced by scientific experts to be submitted as evidence.
Any judge shall be a “Sudanese citizen” (note that the Judiciary Act was drafted prior to independence), of sound mind, and shall hold at least an LLB degree or its equivalent (Jud. Act Sec. 20). Judges shall be at least twenty five years old for County and Payam Courts, at least thirty five years old for a High Court or Court of Appeal, and at least forty five years old for the Supreme Court. The President of South Sudan shall appoint all judges in South Sudan (Jud. Act Sec. 21). The appointment of Supreme Court Justices requires a two-thirds majority of the legislative Assembly (Jud. Act Sec. 22). Judges “shall not engage in trade… which compromise(s) the independence of Judiciary” (Jud. Act Sec. 28). Complaints against judges shall be presented to the President of the Supreme Court or the President of the Court of Appeal. The President of the Supreme Court may refer the complaint to another judge to conduct an investigation and provide recommendations (Jud. Act Sec. 48). The President of the Supreme Court may establish a Board of Discipline (Jud. Act Sec 49). The Board shall give the judge under investigation an opportunity to defend himself or herself (Jud. Act Sec. 53). The options for disciplinary measures are a warning, a reprimand, “deprivation of increment or promotion, for a period, not exceeding one year; cut of pay for a period of one’s month salary; or dismissal” (Jud. Act Sec. 54). Judges may not be arrested, searched or detained except where “caught in the act of committing crime” or with permission from the President of the Supreme Court or the President of the Court of Appeal (Jud. Act Sec. 59). The judicial branch “shall be independent” from the executive and legislative branches of government (Jud. Act Sec. 6). The President of the Supreme Court is “answerable” to the President of South Sudan (Jud. Act Sec. 6).
Victims shall be awarded “adequate compensation” by the Court (CCPA Sec. 6). The Court or Public Prosecuting Attorney shall consider the alleged injury to the victim and alleged threats made to the victim when setting or denying bail (CCPA Sec. 128). For offences punishable with prison terms of up to seven years or committed by a juvenile or woman, the Court may release the convicted person on probation. The Court may include as a condition of probation that the victim be compensated for injury or loss caused by the offence (CCPA Sec. 284).
CCPA Section 231 allows for the accused to call forward character witnesses in the case of a guilty verdict. Chapter XVIII of the CCPA outlines the procedure for sentencing. The Magistrate or Court “may pass any lawful sentence combining any of the sentences, which are authorised by law” (CCPA Sec. 250). If the sentence is imprisonment, the Court may recommend that the convicted person receive special treatment based on the specifics of the case (CCPA Sec. 253).
All death sentences and life imprisonment sentences shall be submitted to the Supreme Court for review (CCPA Sec. 258). CCPA Section 259(1) grants that “under section 258 of this Act, the convicted person, may submit to the Supreme Court by way of petition of appeal, a statement in writing of his or her reasons, why such judgment should be reversed.” Every person convicted by a High Court may submit a written petition for appeal to the Court of Appeal (CCPA Sec. 261). CCPA Section 262 states that the convicted persons in the First Class, Second Class, and Payam Courts may only submit written appeals “where a sentence is passed in excess of the penalties which such magistrates are competent to award.” All appeals must be submitted within fifteen days of sentencing (CCPA Sec. 263). Appellate courts may examine and act as an appellate authority for any case within their jurisdiction. The Court may only revise a sentence of not guilty, call for a retrial of an acquitted person, or increase a sentence if the Court called for a record of the past proceedings within three months of the delivery of the judgment (CCPA Sec. 265).
Right to Counsel:
The CCPA does not include specific provisions for the right to counsel in an appeal. Ineffective Assistance of Counsel The CCPA does not regulate the ineffective assistance of Counsel.
Grounds for Appeal:
All judgments passing a death sentence or term of life imprisonment must be confirmed by theSupreme Court (CCPA Sec. 258). The CCPA does not include other specific grounds for appeal.
CCPA Section 302 states that “when any person causes the arrest of another person and it appears to a Magistrate or Court by whom the case is investigated into or tried that there was no sufficient grounds for causing such arrest,” the Magistrate or Court may order the person causing the arrest to pay compensation not exceeding 100 Sudanese Pounds and may order the person be imprisoned for up to thirty days.
- https://africacenter.org/spotlight/the-rule-of-law-and-the-role-of-customary-courts-in-stabilizing- south-sudan/
- Judiciary Act 2008
- National Security Act 2010
- Ministry of Legal Affairs and Constitutional Development Organization Act 2008
- The Prisons Act 2003
- The Southern Sudan Police Service Act 2009
- Code of Evidence Act 2006
- Code of Criminal Procedures Act 2008
- Transitional Constitution 2011