Lt. Gen. Salva Kiir Violates South Sudan Constitution
South Sudan Democrat Forum
August, 9, 2006
It’s now two months since Gov. Col. Patrick Zomai of the Western Equatoria State (WES) has been suspended. Lt. General Kiir issued a decree suspending the Governor for allegations of inciting tribal clashes.
The Democratic Forum has been hoping that Gov. Zomai would receive speedy justice to determine his guilt. However, what is currently taking place is a flagrant violation of South Sudan Constitution. The Governor has been under house arrest for two months without being taken to court of law that should prove or disprove the allegations.
According to article 1 (2) of the Constitution, “Southern Sudan is founded on justice, equality and respect for human dignity and advancement of human rights and fundamental freedoms”. The detention of the Governor in the house and the mistreatment of his family by irrational armed security men is a blatant violation of all norms of human rights and human dignity. Article 23 (5) of South Sudan Constitution is also ignored by Lt. Gen. Kiir although it clearly states that “every accused person shall be entitled to be tried in his or her presence in any criminal trial without undue delay”.
In the jurisprudence of Constitutional law, two months is unreasonable delay. Since the President has no competent lawyers advising him, Jurisprudence is the theory and philosophy of law. Based on legal precedents in civilized countries, an accused is supposed to be informed of the reasons of his detention and should be brought before a competent court promptly.
Instead of being brought before impartial judge, a committee composed of three individuals has replaced the court of law. The same committee that recommended the suspension of the Governor is the one sitting as the judge to try his guilt or innocence. In criminal law, the accuser cannot be a prosecutor and a judge as well. The Apartheid government in South Africa never had such a justice system. There is no case to prove that the Nazis in Germany practiced it either.
When the three-man committee recommended suspension to the President in June, all the government’s evidence against Zomai should have been given to government’s attorneys, who should prosecute the case in court. If an impartial judge is convinced beyond reasonable doubt that Gov. Zomai was guilty of said offences, then the court should have sentenced him according to law.
However, that is not what is taking place. Governor Zomai is already presumed guilty before the trial in violation of article 23 (1) of South Sudan Constitution which unambiguously states that “an accused is presumed to be innocent until his or her guilt is proved according to the law”.
Whether Lt. Gen. Kiir read the Constitution before signing it last year is something else, but what he should know is that article 23 (3) of the Constitution he signed states that “in all 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”. All the proceedings of the three-man committee are unconstitutional and therefore null and void.
Most importantly, the Presidential decree itself violates the Constitution. An executive decree can suspend the Governor until the investigation is complete. But it has no constitutional basis to put him under house arrest at all, let alone for two months. House arrest is a detention which requires the accused to appear before a competent court. There are plenty of legal cases in United States, Canada, Australia, New Zealand and United Kingdom which consider Lt. Gen. Kiir’s decree as a mockery of justice.
We thought that the Government of South Sudan should not be run under the shadow of the “old Sudan”, which has so far been rejected by South Sudan people. Constitutionally, the SPLA’s military intelligence is not the appropriate security organ that should deal with Governor Zomai. Article 160 (4) (a) of the Constitution gives the police the authority to maintain law and order meaning that the police should be the one handling the case instead of tribal security organ, which has no respect for human rights and dignity.
The Democratic Forum calls upon Lt. Gen. Kiir to release Governor Patrick Zomai from house arrest before his case becomes international issue.
We also call upon Amnesty International and Human Rights Watch to intervene in this matter and stop flagrant violations of international treaties governing respect for human rights and dignity.
Gordon Buay, South Sudan Democratic Forum
Email: [email protected]
Head Office of South Sudan Democratic Forum
Juba, South Sudan