IV. “Prison is not for Me”

“I don’t think about the future. It is only God and the Government who know whether I will stay or be released.”

–Female prisoner, Bentiu prison, October 2011[151]

There are several categories of people in South Sudan’s prisons who simply should not be there. Some are imprisoned in order to compel appearance of a relative or friend. Others are accused or convicted of adultery or other sexual crimes. Police, judges, and medical workers imprison people with mental disabilities, even when they have committed no criminal offense. Such detentions – like those resulting from serious procedural flaws described in the last section of this report – are also “arbitrary” under international law because they cannot be justified by any legal basis, or otherwise violate basic rights and freedoms.[152]

Those who are detained for failure to pay civil debt, court fines, or compensation awards should also not be in prison. These detentions are arbitrary because they are often indefinite, discriminatory on the basis of sex, directly depend on a persons’ socio-economic status not the offense they commit, and are in direct contravention of the ICCPR’s prohibition against imprisonment for failure to fulfill a contractual obligation.[153]

Imprisonment is also an inappropriate sanction for many of the children in conflict with the law in South Sudan’s prisons. Detention is given for petty crimes as a matter of course, not as a last resort, as is required under international law.[154] Sentencing and imprisonment of children often violates provisions under domestic law, and no single prison in South Sudan provides conditions for the detention of children in line with international standards.

Proxy Detention

There has been repeated criticism over the past years of the practice of detaining relatives or friends of criminal suspects in order to compel their appearance.[155] Human Rights Watch met women being held in lieu of their sons in both Rumbek and Bentiu and heard anecdotes of proxy detentions in other prisons, demonstrating that people continue to be imprisoned for other’s crimes.[156]

The file of a 60-year-old woman in Bentiu prison indicated that she was convicted in October 2011 by a customary court for kidnapping and sentenced to one month in Bentiu prison. She told Human Rights Watch: “My son took a girl that he loved. Her family refused to let her marry him, so they went off to Khartoum in July… The girl’s brother brought me to the police… The court put me here so that my son will return.”[157] When Human Rights Watch spoke to her, she had been in prison for 10 days.

*  *  *

Proxy detentions are arbitrary and illegal because the detained person did not commit any crime, and there is no legal basis on which to justify the detention. Police, prosecutors, judges, and chiefs should immediately cease detaining, charging, or convicting individuals simply because the primary investigation target or accused person cannot be found. They should collaborate to secure the immediate release of all those currently in proxy detention.

Imprisonment for Marital and Sexual Offenses

Across South Sudan, both women and men are serving time for a variety of acts related to marriage and sex, the criminalization of which restricts their rights to marry a spouse of their choice, to privacy, and to physical autonomy. International human rights law protects the right of individuals of a marriageable age to marry, with the full consent of both parties.[158]

The rights to privacy and to physical autonomy incorporate the right to engage in adult consensual sexual activity in private.[159]

Restrictions on these rights are deeply rooted in what one recent report referred to as South Sudan’s “dowry economy.”[160] Marriages in South Sudan are entered into as agreements between families, and concluding a marriage requires the negotiation and payment of bride wealth in the form of cattle, other animals, or increasingly money, from a man and his family to a woman and hers.[161]Such payments vary depending on the ethnic group, social status, and wealth of the families involved, but generally range from a number of goats to 30 head of cattle.[162] Respect for this framework is important for family honor as well as family finances. Pre-marital sexual relationships decrease the bride wealth a woman or girl will fetch for her family; adultery breaches the contract families have entered into. Elopement without a formal agreement may deprive a woman or girl’s family of an important revenue source, which may also impact the ability of her male relatives to afford bride wealth for their own marriages.

Many observers and academics surmise that the Islamic law prohibition of zina (sex outside marriage) and other mores reflected in Sudan’s legal system may have influenced and deepened South Sudanese conceptions of sexual transgressions.[163]

The Right to Marry

One way communities regulate marriage is to penalize the act of “elopement,” which generally involves pre-marital sex with the intent of marriage, without the blessing of concerned families or the payment of bride wealth.  In October 2011, there were five men in Bentiu prison convicted of elopement by customary courts. In August 2011 in Rumbek, there were 15 men in prison, charged or convicted of elopement by statutory courts.[164]

The term elopement is not in the Penal Code. Chiefs and judges, however, sometimes rely on provisions against kidnapping or abduction as a legal basis for imposing prison sentences.[165] Indeed, some elopements may involve a man taking a woman and having sexual intercourse with her in order to compel her and her family to consent to marriage, or to lower the required bride wealth.[166] Criminal punishment may be an appropriate sanction for such acts.

 However, some “elopements” end in prison sentences, despite two parties consenting. A young woman who was brought to Rumbek prison in August 2011 recounted:

I eloped with my boyfriend. My parents didn’t like him. They wanted me to marry an old man I did not love…a cattle keeper, very wealthy, with grey hair, three wives and other children. The court said, ‘you have to agree with what your family has said.’”[167]

The presiding county court judge sentenced both her and her boyfriend to each serve seven years and pay 500 pounds (approximately $170).[168]

Indeed, a woman or girl may end up in prison for attempting to marry without the consent of her family, as well as for refusing to marry the man her family has chosen for her, or for running away from her husband after bride wealth has been paid.[169] Such was the case of an 18-year-old woman in Lakes State, who had been in prison for four months and summed up her crime as “not liking an old man.”[170] Early and forced marriage is widespread in South Sudan, where two in five girls marry before the age of 18 and 11 percent before age 15.[171] Women and girls are not sufficiently protected from this form of sexual violence; prosecutions against people who force them to wed against their will are rare. Besides a provision against “kidnapping or abducting a woman to compel her marriage,” the Penal Code does not criminalize forced marriage.[172]

Human Rights Watch also met women who were imprisoned because they requested a divorce. Divorce is not widely accepted in South Sudanese society, and requires a woman’s family to return all or part of the bride wealth to the husband.[173] Researchers met one woman who said she left her husband and was imprisoned until she reimbursed the value of the bride wealth payment, 5,000 pounds (approximately $1,700), herself.[174] Another woman who tried to divorce her husband, because “he was a drunkard and could not look after me and the children,” said she was imprisoned in mid-2011 and fined 600 pounds (approximately $200) by a customary court that ruled it was her husband, not her, who should ask for a divorce.[175]

Rights to Privacy and to Autonomy

Statutory judges and traditional chiefs draw on an array of charges to imprison people for what is often consensual sex.[176] The most common charge is adultery, defined by the Penal Code as consensual intercourse with the spouse of another person, with 18 as the minimum age of consent. It is punishable with customary compensation awards, court fines, and/or up to two years imprisonment.[177] A 2008 survey of South Sudan’s prison population found that 8.7 percent of inmates were charged with or convicted of adultery.[178]

“Pregnancy” and “playing sex” (a common South Sudanese expression for sexual intercourse) are other charges Human Rights Watch found listed in prisoner files, usually in rulings from customary courts.[179] The numbers of individuals imprisoned for these crimes was especially high in Rumbek, where a UN corrections advisor counted 25 men in prison for “pregnancy,” and one for “playing sex,” with sentences up to 15 years.[180]

Sexual offenses discriminate against women in particular, as women’s ability to engage in consensual sex is even more restricted than men’s. Women interviewed by Human Rights Watch explained that adultery is a consequence of unhappy marriages women cannot escape –where husbands beat them, neglect them, or fail to provide food.[181]  But while legally married, a woman who is unhappy, has no effective relationship with her spouse, or may not have seen him in years, may still be convicted of adultery.

Although the total number of women in prison –407 as of November 2011 – is much lower than men, a high percentage of women have been accused of sexual offenses. In Aweil, Wau, Malakal, and Rumbek, Human Rights Watch found that most of the women in prison were accused or convicted of adultery. In Rumbek, for example, of 27 women and girls in prison, approximately 20 were there for adultery.

While women are imprisoned for engaging in consensual sex, they are not sufficiently protected from sexual violence.[182] The Penal Code explicitly excludes “sexual intercourse by a married couple” as capable of constituting rape.[183] As trials for sexual offenses rarely probe the question of a woman’s consent and sometimes fail to enforce 18 as the minimum age of consent, cases of adultery or “pregnancy” may in fact have involved an element of force. But studies indicate that this is often left unaddressed.[184]

*  *  *

Contending with these problems in South Sudan is extremely challenging and will require a range of reforms, including amending the Penal Code so that people are not imprisoned for adultery, and the establishment of safeguards to protect the right of individuals of a marriageable age to enter into consensual marriages. The judiciary and traditional chiefs should ensure that all trials for sexual offenses adequately assess the question of consent, to both ensure protection of liberties and provide accountability for nonconsensual acts.

People with Mental Disabilities

“We are supposed to be seen as human beings, and be cared for and helped, because we are not bad.”

–“Lunatic,” age 25, Juba Central Prison, November 2011[185]

South Sudan is currently unable to fulfill the guarantee of its Transitional Constitution that all people with disabilities “shall be provided with the necessary care and medical services.”[186] In South Sudan there are no mental health facilities anywhere in the country. The minister of health estimated that there are perhaps one or two psychiatrists in all of South Sudan.[187] The government hospital in Juba provides the only psychiatric care services available, and its psychiatric ward has only 15 beds. According to George Nazario, who oversees this ward, the hospital is unequipped to house anyone who presents behavioral challenges or poses a security risk.[188]

According to officials who spoke to Human Rights Watch, it is due to this lack of available care that approximately 90 men and women are held in prisons across the country because of actual or perceived mental disabilities.[189] This group of individuals – officially labeled by the Prisons Service as “lunatics” – are deprived of their liberty “for their own safety and that of the general public.”[190] Very few are accused of any criminal offense. They are unable to appeal their incarceration, and most are imprisoned with no release date. In prison, they receive insufficient and ineffective medical care and live in conditions often significantly worse than other prisoners. It is critical that the government develop an alternative plan to guarantee the rights of people with mental disabilities.

Lack of Available Care

Many individuals in prison due to actual or perceived mental disabilities are initially brought to the police or to the hospital by their own families, who feel unable to provide for their care.[191] According to George Nazario, proper medication could allow some to remain in their communities.[192] Such treatment, however, is beyond the means of most South Sudanese.[193] Furthermore, due to societal misconceptions, many do not see mental disabilities as treatable, or attribute them to curses or witchcraft.[194] The only option some families see is to hand their relatives over to the state.

With no mental health facility and with irregular supplies of medicine, the government is also ill-equipped to provide proper care. According to the minister of health, “The only solution is a hospital or a center where we can deal with these cases.”[195] Many government and prison officials agreed.[196] But with limited resources and priorities to increase access to primary health care, provide immunizations, and decrease maternal mortality, little attention is currently given to mental health. “If we have funding for such a facility; we will welcome it,” said the minister of health.[197]

The Criminalization of Mental Disabilities

 “Mentally ill people are not criminals. They should not be kept in prison.”

–Dr. Michael Milly Hussein, minister of health, November 2011.[198]

People with mental disabilities are placed in prison through a process that effectively criminalizes their disabilities. Human Rights Watch reviewed the prison files of 51 out of 64 individuals detained as “lunatics” at Juba Central Prison. Of the 51, only three files showed any indication that the individual in question may have committed any crime.[199] Detaining these individuals discriminates against them on the basis of mental disability – the only basis for their detention – in violation of international human rights law.[200]

Their prison files generally include a police intake form requesting a psychiatric evaluation along with the evaluation itself. These evaluations, rarely more than two sentences long, reveal how disability becomes grounds for imprisonment. The evaluation of one inmate, typical of most others said:

Old case of mental illness, a relapse. Needs to be in custody for her safety and for the public at large because she is much disturbing, violent and aggressive to people. She is to be under treatment in custody until she recovers from the illness.

The evaluation of another inmate read:

Abnormal behaviour provoked by alcoholic intoxification with personality disorder. Suggested be kept for drying out in Sanatorium of Juba Central Prison.

On the basis of the police referral and psychiatric recommendation, a judge then decides whether to order a person detained under section 143 of the Code of Criminal Procedure, which allows for an arrest when “there is reason to fear the commission of a breach of peace or disturbance of public tranquility.”[201] People with mental disabilities are not taken to court and so rarely appear in person before a judge. The written orders seen by Human Rights Watch repeat the psychiatric recommendation, cite the Code of Criminal Procedure, and order individuals to be imprisoned. “Never in my life have I been to court,” said one inmate, imprisoned following an attempt to commit suicide.[202]

Some people with mental disabilities are imprisoned without any procedure at all. There are case files that are incomplete, missing, or never assembled. Among the 51 files of individuals imprisoned in the “lunatic” ward at Juba Central Prison, 13 files contained no psychiatric evaluation and 10 included no court document. Prison officials were completely unable to locate the files of 13 inmates.  George Nazario, who oversees the psychiatric ward in Juba Teaching Hospital as well as the people with mental disabilities in Juba prison, acknowledged that “there is some mismanagement…Sometimes…I find that someone has been brought and just put inside [the prison] without following the right procedures.”[203] Similarly, in Bentiu, after multiple searches, prison officials gave up looking for the file of a man who has been detained for over two years. “He talks to himself about the war,” was the only explanation of his alleged mental disability or justification given for his detention.[204] There was no document to confirm his identity, no indication of whether a psychiatric evaluation was ever performed, and no one could say precisely how long he had been there.

Indefinite Detention with no Right to Appeal

When judges order the detention of a person with a mental disability, they very rarely set a date for release or for the renewal of the detention order. The criminal procedure provision used to detain people provides only for an “arrest” and states no maximum period of continuous detention. Letters from the court seen by Human Rights Watch typically say: “He should be imprisoned until he recovers.” Only five of the files examined in Juba gave limited sentences, all of six months. Domestic law is silent on procedures for releasing inmates with mental disabilities.[205]

People with mental disabilities have little or no choice in the decision to arrest them or keep them in prison.[206] The medical assistants at Juba prison recounted: “Some of them are questioning us, ‘why am I brought here? Did I cause a crime?’ They ask us this, and we tell them that they are brought here for safety.”[207] A man who had been in Yei prison for four months without having committed any crime said he had repeatedly asked the prison officials to let him go, to no avail.[208] “Prison is not for me. Let me be free,” insisted a 25-year-old inmate in Juba prison.[209] Yet inmates with actual or perceived mental disabilities are unable to appeal their detention, as they have no access to legal assistance.[210]

Of the files examined by Human Rights Watch in Juba prison, researchers found that inmates with actual or perceived mental disabilities had been in prison for on average 19 months. The file of one young man indicated that he was first imprisoned in 2004, when he was only 15 years old.  According to prison officials, several inmates have been in prison for over 20 years, and one man for over 30.[211]

Inadequate and Ineffective Treatment

Treatment in Juba prison’s “lunatic ward” is inadequate, sometimes forced, and generally acknowledged as ineffective.  The director general of the South Sudan Prisons Service told Human Rights Watch, “If they had good food and medication, they would heal.”[212]

The medical officers in Juba prison have insufficient medication to properly treat inmates with mental disabilities.[213] Relatives of people with mental disabilities may be given prescriptions and required to pay for and bring the medication themselves. One inmate in charge of overseeing those with mental disabilities said: “The government does not bring anything; it is the families… If the families don’t bring medicine, there is no treatment.”[214] One of the medical assistants concluded that “the government is neglecting mental people here.”[215]

Prison officials sometimes administer drugs, usually sedatives, against the will of the patient.[216]  “When I refused the injection, they caught me by force. What kind of doctor injects you by force?” asked one inmate.[217] Such treatment infringes on prisoners’ right to health, which includes the principle of treatment on the basis of free and informed consent.[218]

Inhumane Conditions

The minister of justice described the living conditions of inmates with mental disabilities as “awful” and admitted that they “cannot be said to meet human rights standards.”[219] In Juba prison, male inmates with mental disabilities are housed together in a section of the male ward. In one room, some are chained to the floor day and night, naked, and soiled in their own excrement. In another, over 40 inmates stay together at night, although they are free to roam the prison compound during the day. With no bedding, they sleep on bare concrete floors.

Some inmates with mental disabilities have a tendency to urinate and defecate on floors in their rooms, and prison officials do not provide adequate cleaning materials. “There is no soap and detergent so that they can be really cleaned…The last time we had soap was six months ago…Now, we only pour water on the floor,”[220] explained one inmate who oversees cleaning. Both rooms smell heavily as a result.

Supposedly imprisoned “for their own safety,” in Juba, male inmates with mental disabilities are not sufficiently protected from each other.[221] Fights at night, when inmates are locked in the room together, are frequent, resulting in injuries and one death in 2010.[222] An inmate described his time in the “lunatic ward:”

When I was brought here, I didn’t believe I would come out of that place. At night, people fight themselves. Some use razor blades. Others they insult, others they cry. Others are innocent. Others are angry. Others laugh but are not happy. Others are quiet. Others do not wear clothes – they move naked.

Female inmates with mental disabilities in Juba prison are mostly kept in solitary confinement, in similar conditions as the men. Human Rights Watch found one woman sitting outside, alone, in the alley behind the cell-block, where she was chained to a large piece of metal day and night. 

In other prisons across South Sudan, conditions are no better. In Malakal, four inmates with mental disabilities are naked and tied outside to trees during the day. In Aweil, five are each kept in solitary confinement, some of them in chains. They are rarely allowed to go to the toilet, and so they defecate in their cells.

The prisoner in Juba assigned to oversee those with mental disabilities advised families to come and take their relatives for treatment elsewhere, “because in prison, no one cares for them, and their mental disorder will increase all the time.”[223]  Verbal abuse negatively impacts these inmates: “People here call us crazy. This makes us angry, and makes us feel crazier. We should be kept in a better place.”[224]George Nazario advised the Prisons Service to stop using the term “lunatic:” “When you say, ‘go to the lunatic ward,’ the patients will not feel well…They feel that someone who is called a lunatic is not a human being.”[225]

*  *  *

Police, health workers, judges, and prison officials are all complicit in the arbitrary incarceration of people with mental disabilities. The Ministry of Health should develop a national plan for the provision of mental health services, including a facility for individuals with mental disabilities as well as community-based treatment, and seek external support as necessary.[226] In the interim, the Ministry should work to increase the capacity of the psychiatric ward of Juba Teaching Hospital, with the goal of removing individuals from the prison and making available services in a hospital setting.

At the same time, the Ministry of Justice and the judiciary should ensure prosecutors and judges do not seek or order the detention of people with mental disabilities who have not been accused of a crime. Prisons should refuse to hold individuals without a legal warrant for detention. The National Legislative Assembly should ensure that imprisoning individuals on the basis of disability is explicitly prohibited under domestic law and pass legislation to regulate the commitment and discharge of people with mental disabilities to a medical facility in compliance with international standards.

While long-term solutions are developed and introduced, the Prisons Service should immediately review all cases where persons are detained on grounds of mental disability, and immediately release those whose detention does not comply with international human rights law. As the prison system cannot provide treatment for individuals with mental disabilities, no one should be detained for the purpose of treatment.  The Prisons Service should also urgently and immediately take all possible steps to improve the living conditions of all individuals with mental disabilities, who remain in detention, particularly with regards to sanitation. The Prisons Service and the Ministry of Health should collaborate to ensure the availability of appropriate treatment.

Imprisonment for Debt

According to a 2008 survey, approximately 10.9 percent of inmates South Sudan were detained for failure to pay civil debt, court fines or victim compensation awards.[227] Debtors are often imprisoned for prolonged or indeterminate periods. Many have given up hope that family members will come forward with contributions on their behalf, and there is little opportunity for income generation while in prison. This widespread phenomenon not only violates the rights of those detained, but also makes it even more difficult for them to pay.

Civil Debt

A common critique of justice processes in South Sudan is the failure of courts, both customary and statutory, to distinguish between civil and criminal matters. As a high court judge commented, “In many cases, the cause of action is civil in nature, and should not be punished with prison.”[228] A 26-year-old woman in Juba prison, for example, said she bought meat on credit from a local butcher and was late in paying him back. The butcher had her arrested and a high court judge sentenced her to prison, indefinitely, until she repaid the debt in full. When researchers spoke with her, she had been in prison for eight months.[229]

Such detentions due to civil debt directly violate the ICCPR’s prohibition on imprisonment “merely on the ground of inability to fulfill a contractual obligation.”[230] South Sudan’s Code of Civil Procedure, furthermore, clearly establishes the conditions under which a judgment debtor can be detained – following an examination of his ability to pay, and only where he has refused to pay, has recklessly contracted other debts, or has transferred property in bad faith to obstruct the execution of the judgment.[231] Where a judgment debtor is committed to prison, in no case can he be detained for more than six months.[232]

Fines

People convicted of crimes in South Sudan are often required to pay a fine to the state.[233] The Penal Code permits imprisonment for non-payment of fines, but states: “the court which sentenced the offender may direct that upon default of payment of the fine, the offender shall be sentenced to imprisonment for a certain term.”[234]

Judges often fail to specify the term of imprisonment that should result from non-payment of a fine. One man in Aweil had served his two-year prison sentence, and paid 31 cows in compensation to the victim’s family, but remained with a fine of 1,000 pounds (approximately $340). He had no idea how he would pay or when he would be released.[235] Some prisons apply a system whereby such fines may be paid off with time in prison. This practice is applied inconsistently and does not appear to be based on any provision in law.

Compensation Orders

Victim compensation is a critical element of criminal punishment in South Sudan. This is in large part due to the strong influence of customary legal systems, which tend to emphasize restorative over punitive justice. Under customary law, acts of murder, adultery, theft, and injury are all dealt with through awards of compensation, often in the form of cows or other livestock, from the perpetrator to the injured party. Today, both statutory and customary courts impose sentences of terms of imprisonment together with customary compensation awards.

The Penal Code provides that when a court issues a conviction, it may also award compensation to any person injured by the offense.[236] Compensation is routinely ordered in cases of adultery and murder.[237] Men convicted of adultery are generally required to compensate a woman’s husband (the aggrieved party), in addition to serving terms of imprisonment and paying court fines. In one typical murder conviction, a court in Tonj, in March 2011, sentenced a woman to three years in prison, a fine of 3,000 pounds (approximately $1,020), and to pay the relatives of the deceased 31 cows in customary compensation.[238]   

The same six-month limit on detention that applies to civil debt also applies to orders for compensation made during criminal trials. The Penal Code states that such orders should be sent to a civil court for execution in accordance with the rules governing execution of judgments as set forth in the Code of Civil Procedure.[239] The indefinite detention of individuals who have failed to pay compensation awards therefore violates domestic law. “People are not supposed to stay forever until they pay,” said a county court judge in Yei.[240]

Other South Sudanese justice sector officials, however, explained that compensation awards must be paid regardless of the economic situation of the debtor; that failing to pay compensation results in serious personal risk; and that there is no option but to keep individuals in prison until they somehow manage to pay. At all prisons visited by Human Rights Watch, prison staff explained that continued detention of some debtors was necessary for their own protection, whether or not the individual in question wanted this kind of protection. The result is that in practice, many individuals stay in prison indefinitely.

Indefinite Detention

Unpaid debts often result in indefinite or indeterminate periods of imprisonment. In some cases, prison records include no specific release date. In February 2011, a customary court had ordered a young man in Malek Alel County Prison to pay six cows in unpaid bride wealth to his wife’s family; his prison record said nothing of the length of time he should serve.[241] Similarly, a 21-year-old man, who was imprisoned in January 2011 and had spent four months in Malakal prison when Human Rights Watch met him, said that the chief had ordered his detention until he paid five additional cows in bride price.[242] In Bentiu, Human Rights Watch saw 17 warrants where a traditional chief or statutory judge had either given no sentence of imprisonment at all or had written that imprisonment would last, “until he pays.”

Even when courts do give a determinate sentence, when debts are unpaid, many inmates remain in prison far past their official release date. There were 28 such cases in Bentiu.[243] A man in Aweil prison was sentenced in 2007 to one year in prison and 15 cows in compensation; four years later and after paying 10 of the required cows, he remained in prison.[244] A 44-year-old widow in Yei had overstayed her three-month sentence for theft by six months; when asked about the 5,000 pounds (approximately $1,700) in compensation she was ordered to pay, she explained: “I have no money.”[245] An official in Bentiu Prison spoke especially vocally against this practice: “A man can be sentenced to 10 years in prison. When the 10 years are finished and the compensation is not paid, the person will remain in prison…The problem is that such a prisoner could be here forever.”[246]

While the logic of imprisoning people for non-payment is to compel them or their families to pay, many have no means of repaying debts, and prolonged imprisonment makes it even more difficult for debtors being held to repay. One man said in frustration, “before, I worked as a driver … [and] was paid 500 pounds (approximately $170) a month. If only I could work, then I could pay back the money. But I am stuck here. I cannot work and pay them back.”[247] A 66-year-old man convicted of adultery wished he could return to his fields to grow sesame and sorghum and sell these crops to pay off his fine.[248] A man from the Dinka ethnic group told of the challenge of convincing relatives to contribute cows while he is in prison: “You know, amongst our people, you must spend 20 days with a relative just to get one cow.”[249]

Debts are particularly difficult for foreigners, or those whose homes and kinship networks are far from where they are imprisoned. A Ugandan man in Aweil complained that if he could only make a phone call to Uganda, he could find someone to borrow money from, but has been unable to do so.[250] A man from Yambio, in prison over six hours by car away, in Yei, said of his case, “The chief said I have to stay in prison until I pay. I said that all my people are in Yambio, I cannot pay here…I have no idea when I will be released.”[251] There are several former Sudan Armed Forces (SAF) soldiers in prison in Bentiu on convictions of murder by military tribunals. When SAF withdrew from Unity state in 2007, they stayed behind in prison.[252] One former soldier from Darfur has overstayed his sentence by three years and still owes 20,000 pounds (approximately $6,800). “I don’t have any idea where this money will come from,” he said.[253]

Impact on Women and Persons of Limited Means

The imposition of imprisonment for monetary debt has a particularly negative impact on women. In South Sudan, women have limited access to property. As a result, they are much less likely than men to be able to pay off contractual debt, fines, or fulfill compensation orders. A woman imprisoned in Aweil for murder was told that if she paid the 31 cows in compensation she would be released, but her husband has abandoned her, and she has no cows of her own.[254] A 50-year-old woman in Bentiu was never sentenced to any time in prison, yet she served over three years because she was unable to pay 1,650 pounds (approximately $560) to the family of a child she was convicted of injuring. Her only son was an SPLA soldier who died during the war; her brother was in Ethiopia; her sister was poor and old. “I don’t have any relatives who can pay the money,” she told Human Rights Watch.[255]

The fact that the ability to pay compensation is dependent largely on the wealth of the perpetrator’s family means that inevitably imprisonment for fines and debt has a disproportionate impact on those with low income, and persons end up in prison simply because they are poor. Those who can quickly pay off a fine or offer sufficient monetary satisfaction to a victim’s family will spend significantly less time in prison, and sometimes will never be detained at all. This creates large disparities in the dispensation of justice. Harsh sentences are imposed on some and not others for similar crimes. In Bentiu prison, one man condemned to death for murder in 2011 recounted: “My trial was not fair…They [the relatives of the deceased] first asked for compensation, but when they found that I couldn’t pay, they said that I should be killed.”[256]

*  *  *

There is an urgent need for the Ministry of Justice and the judiciary to address the issue of imprisonment for debt, with a view to its abolition. In the meantime, they should review cases of all imprisoned debtors and immediately release those still in prison simply due to inability to pay a debt, or who have already overstayed legal limits. They should amend the Code of Civil Procedure to ensure that the consequences for non-payment of for civil debt, fines and compensation orders, comply with South Sudan’s international obligations, in particular the prohibition on imprisonment for failure to fulfill a contractual obligation. So long as imprisonment remains available as a legal consequence for non-payment of debt, it should be strictly limited to situations of non-fulfillment of a court ordered payment, should only be used as a last resort and for as short a period as possible, in any event no longer than the six-month limit on imprisonment for debt currently in the Code of Civil Procedure. Courts should establish simple and clear procedures to facilitate arrangements for paying off debts and switch to use of non-custodial sentences, to allow debtors to work and pay off fines.

Children in Conflict with the Law

One-hundred and sixty-three boys and five girls were incarcerated in South Sudan as of November 2011, all living alongside adults.[257] Many of them are removed from their families and from school to await trial for extended periods, and then given sentences that contravene domestic law. Even if ordered to spend time in a rehabilitation center (referred to in South Sudan as a “juvenile reformatory”), there is no rehabilitation center in the country for children. And there are virtually no educational opportunities behind bars.

Extended Pre-trial Detention

Children are subject to the same long periods of pre-trial detention as adults, in violation of their right to be brought “as speedily as possible for adjudication.”[258] Under the Child Act, children should be detained pending trial “only in exceptional circumstances, for most serious cases, as a measure of last resort and for the shortest possible period.”[259] Of the 168 children in South Sudan’s prisons, 50 were in pre-trial detention.[260] One 16-year-old in Juba prison said he had been on remand for 12 months and had never been to court.[261]

Overuse of Incarceration

Children convicted in South Sudan’s justice system will almost invariably end up in prison. Limitations on the sentencing of children to detention under domestic law are often not implemented. At the same time, there are no programs or dedicated facilities in place for children in conflict with the law.

Under international law and South Sudan’s Child Act, sentencing of children should be non-custodial wherever possible; the Convention on the Rights of the Child (CRC) recommends guidance and supervision orders, counseling, probation, foster care, education and vocational training as alternatives to institutional care.[262] South Sudan is currently implementing a fledgling juvenile probation program, staffed by social workers and probation officers who can recommend the diversion of children from the formal justice system; the dropping of charges; the release of the child to a parent, guardian or other fit person; an “appropriate placement;” or detention in a secure facility.[263] Where they are present, social workers and probation officers play a positive role in overseeing and advocating on behalf of children in conflict with the law.[264] Yet their numbers are insufficient and the lack of actual programs or facilities for children limits their ability to reduce the number of children living behind bars.[265]

Sentencing limitations under domestic law are often not implemented. The Penal Code prohibits the imprisonment of any person under 16 years of age,[266] and provides that where possible, detention of all children should take place in a “reformatory,” rather than in prison.[267] As the only “reformatory” in South Sudan was destroyed during the civil war, even when a judge orders a child to spend time in a reformatory, she or he will in fact simply be sent to prison.[268] Human Rights Watch interviewed 10 prisoners who were under age 16. Children, prison officers, officials in the Ministry of Justice, and judges all expressed frustration at the absence of a facility for child offenders. After considering the file of a 13-year-old in Bentiu prison, a high court judge said: “This [child] is not supposed to be in prison, he should be in a reformatory. But we don’t have a reformatory…We have no place to send these boys.”[269]

Domestic law also says that detention of any form, whether in a rehabilitation facility or in a prison, should only be imposed if a child is convicted of a “serious offence involving violence against another person.”[270] The African Commission has called for a similar restriction.[271]  Yet, according to a 2008 assessment, in South Sudan most children in prison are held for relatively minor, non-violent offenses, such as theft or possession of stolen property.[272] A 13-year-old boy was sentenced to two years imprisonment in Malakal for stealing a phone. He was first arrested by soldiers, who he said held and beat him for 15 days before taking him to the police station. He had no lawyer, and no adult relative was present at his trial. “The judge gave two years and no one argued,” he said.[273]

The Child Act provides that “no child shall be arrested, detained or imprisoned where a financial penalty, imposed by any authority or in a settlement of any case, has not been paid, including by his or her family.”[274]  Yet the judgment of a 13-year-old in Bentiu prison convicted of theft states that he must remain in prison until his father pays 17,000 pounds (approximately $5,780).[275]

The Child Act further allows judges to suspend sentences completely or partially, on medical, vocational, or scholastic grounds.[276] It also provides that children accused of offenses can be diverted from the formal criminal justice system, for their cases to instead be handled through restorative justice processes such as family conferences of victim-mediation.[277] Human Rights Watch is unaware of the extent to which either of these mechanisms for avoiding the imprisonment of children is being used.

Lack of Rehabilitation or Education

The primary objective of placing children in an institution should be to provide them a chance for social rehabilitation and reintegration.[278] In South Sudan, services for incarcerated children and the conditions of their detention do not conform to international or domestic law, and as a result, the future may be bleak for many of the children who enter the prison system.

Key to rehabilitation and reintegration is the fulfillment of the right to education of children in detention.[279] International standards provide that “[e]very juvenile of compulsory school age” who is deprived of his or her liberty “has the right to an education suited to his or her needs and abilities.”[280] Education should be designed to prepare children for their return to society, and enable them to be productive members of their communities.[281]

Several children interviewed by Human Rights Watch complained that they were unable to continue their studies while detained. Classes are either non-existent, inconsistent, or students lack adequate educational materials. There are no classes at all at Bentiu prison, where 24 children are imprisoned. The prison director explained that the Ministry of Education had refused to send and pay for a teacher.[282] In Malakal, there are sporadic classes for children, but insufficient pens and paper.[283] When Human Rights Watch visited Yei prison, prisoners and prison officials explained that classes had stopped due to lack of books and other necessary materials.[284] On a positive note, in April 2012, probation officers at Juba prison began transporting over 20 child inmates every day for classes and vocational training. In general, however, children will leave prison having benefitted from little or no education.

Contact with peers, family members, and the wider community is essential for preparing children for their eventual reintegration into society.[285] Family visits in South Sudan’s prisons are often constrained to certain days of the week, limited by time, or allowed only if visitors make some payment. In Aweil, no exceptions are made for children. One 15-year-old explained that when his mother visits, he can only speak to her for five minutes and only after she pays the one pound (approximately $.30) fee.[286] A child in Yei prison similarly complained that his mother and sisters have to pay one pound per person to visit him.[287]

Children are held in prison together with adults, in violation of clearly established standards.[288] This exposes children to risks of violence, exploitation, and physical or sexual abuse.[289] A traditional chief complained: “The mixing of children is a problem. I think if they are in with other criminals, they will be corrupted and steal more.”[290] In Wau, Yei, and Juba prisons, Human Rights Watch found that male children have separate sleeping quarters, but are within the same compound as the adult men and mingle with adults during the day. In Aweil, though there is a newly renovated male juvenile wing, it was being used to house “officials” when Human Rights Watch visited. In Malakal, Rumbek, and Bentiu, no distinction was made between juvenile and adult male facilities. In all the prisons researchers visited, girls were detained alongside women.[291]

Children deprived of their liberty have the right to adequate food, health care, and sanitation, all of which are critical to proper development.[292] Yet children in South Sudan’s prisons live in the same filthy conditions as adults. They survive on the same rations, which are almost uniformly insufficient in both quantity and vitamin content.[293]

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South Sudan’s Child Act provides a clear road-map for bringing the juvenile justice system in line with international standards. Police, prosecutors, and judges should work to ensure that its provisions are properly applied, particularly rules on pre-trial detention, the sentencing of children, and the use of alternatives to imprisonment. The full implementation of these provisions will contribute to ensuring that children are incarcerated only as a last resort.

A pre-requisite to reducing the number of children in prison will be for the Ministry of Interior and the Ministry of Gender, Child, and Social Welfare to collaborate in the development, expansion, and implementation of non-custodial alternatives to imprisonment for children in conflict with the law.

While non-custodial alternatives should be favored over any form of institutionalization, centers for children in conflict with the law, with rehabilitation as their primary objective, will facilitate the separation of detained children from adults and allow for the provision of services tailored to children. The design of such centers should take into consideration international standards calling for the placement of children in the least restrictive setting possible, with a preference for “open” facilities that are small and integrated into the social, economic, and cultural environment of the community.[294]

In the absence of an alternative facility for children, the Prisons Service should immediately work to separate children from adults. It should collaborate with the Ministry of Education to ensure that children in prison are not deprived of their right to education, and work to improve the conditions in which children are detained. In the words of one government minister, “We cannot just throw away children who are in conflict with the law.”[295]