Summary
On July 9, 2011, crowds cheered and danced in the streets, celebrating the independence of the new nation of South Sudan. Meanwhile, close to 6,000 people, including women and children, languished in South Sudan’s prisons. Some of these inmates could have joined in the festivities, but are behind bars because of chronic weaknesses across the criminal justice system. In South Sudan arbitrary detention is rife, with those who should not have been detained at all spending months or even years in one of the country’s approximately 79 prisons, which are overcrowded and dirty, with food and health care in short supply.
The signing of the Comprehensive Peace Agreement (CPA) in 2005 between the National Congress Party-led Government of Sudan and the Sudan People’s Liberation Movement and Army (SPLM/A) brought an end to 22 years of civil war and granted Southern Sudan regional autonomy. Over the past seven years, the government in Juba has made significant progress in establishing key institutions, including Southern Sudanese police, prisons service, and courts, building necessary infrastructure, and passing new legislation. Yet the legacy of two decades of civil war presents massive challenges to developing a functional criminal justice system, such as a lack of trained civil servants, including judicial officers and police, and budgetary constraints.
In the face of such severe challenges, at independence, South Sudan’s leaders pledged to uphold human rights. President Salva Kiir promised in his independence-day speech to respect and ratify human rights treaties. He also signed into force a new constitution that proclaims the country to be founded on justice, equality, and respect for human dignity and guarantees rights to due process, physical integrity, and protection from unlawful deprivations of liberty.
Despite this new constitution and the relative progress that has been made since the CPA was signed, there are persistent weaknesses in the rule of law in South Sudan, resulting in serious human rights concerns. This report focuses on prison populations and conditions, and documents patterns of arbitrary detention and other human rights abuses in the administration of justice. It challenges the government of South Sudan to ensure that its criminal justice system develops in accordance with human rights norms, rather than allowing systemic weaknesses to fester. An effective and rights-respecting criminal justice system is critical to providing a sense of security, to ending cycles of violence fueled by impunity, and to ensuring accountability while guaranteeing due process rights.
Approximately one-third of prisoners in South Sudan are on remand – that is they have not been convicted of any crime – but are held in prison, often unnecessarily, awaiting the commencement or resolution of their trial. Many remand prisoners were arrested but have not been brought before a judge, and remain in prison because they were never given the option of bail. They wait for police to conclude investigations, for judges to schedule their trial, and for witnesses to appear in court for prolonged periods – sometimes for years.
Some prisoners have not even been accused of any crime. There are inmates detained as proxies, simply to compel the appearance of a relative or friend. As of November 2011, 90 individuals, labeled “lunatics”, were deprived of their liberty because they were said to have demonstrated evidence of mental disability. Some are chained to the floor day and night, naked, and soiled with their own excrement.
The overwhelming majority of prisoners –an estimated 95 percent – go through the criminal justice system without counsel. Most are too poor to pay for a lawyer, and there is no functioning system of legal aid. Most cannot read or write, and with no support from the state, they often have no understanding of the nature of the charges against them or the status of their case. Defendants are sentenced to death even though they have not been able to call and prepare witnesses in their defense.
South Sudan operates a plural judicial system, which includes statutory and customary courts. Customary courts are accessible, familiar, and efficient, but their exercise of judicial powers is not sufficiently overseen by the judiciary, and their criminal jurisdiction is unclear. Individuals can be sentenced to prison for crimes such as “pregnancy” that are not precisely defined and have no statutory basis. Chiefs, state-sanctioned community leaders who preside over customary courts, apply the Penal Code without legal training and impose corporal punishment.
In all of the 12 prisons Human Rights Watch visited in researching this report, people were detained because they cannot pay debts, court-ordered fines, or compensation awards. Many have given up hope that family members will come forward to pay on their behalf, and there is little opportunity to generate income while in prison.
There are people in prison because they are accused or convicted of marital or sexual offenses, such as adultery and elopement. The criminalization of adultery places undue restrictions on the fundamental right to privacy, which includes the freedom to engage in adult consensual sex. Imprisonment for elopement limits the right to marry a spouse of one’s choice.
There are over 150 children in conflict with the law in South Sudan’s prisons. Domestic law allows imprisonment only from age 16, but Human Rights Watch met inmates as young as 13. Children are removed from their families and from school to await trial for extended periods, and sometimes given long sentences for petty offenses such as theft. There are no alternatives to imprisonment, and in all prisons Human Rights Watch visited, children are housed alongside adults.
The prison population has surged since 2005, from approximately 1,500 to almost 6,000 at the end of 2011, according to the Prisons Service. As there has been little expansion of prison infrastructure, this rise in the number of prisoners has contributed to grim conditions. In the overcrowded prisons, inmates sleep in tightly packed cell-blocks, and as a result have difficulty sleeping at night. Facilities rarely allow convicts to be fully separated from remands, children from adults, or even women from men.
As 93 percent of the Prisons Service’s budget goes towards paying salaries for its staff of over 20,000, it has been unable to adequately feed the people who are detained. Mothers with young children are offered no extra rations or services. Prisoners sometimes do not have enough water to bathe. Disease and illness spread easily, but go untreated, unless inmates are able to pay for medicine themselves. Beatings are routine, and some inmates are permanently shackled. In one major prison, 10 inmates died in 2011 alone, mostly of treatable illnesses.
The composition of prison populations – particularly the high number of remands – reflects problems at other levels of the criminal justice system. It is urgent that all justice sector actors and all stakeholders take coordinated action to address these various problems with the ultimate goal of reducing the number of inmates who are arbitrarily detained. The Ministries of Justice, Interior, Health, and the judiciary all need to collaborate more effectively to bring about needed improvements. The government should promptly review the cases of all prisoners and release all but those whose continued detention is strictly justified on the basis of an appropriate court sentence handed down following a fair trial, or those facing serious criminal charges whose appearance for trial would not be guaranteed if they were to be granted pre-trial release.
To improve the situation in the longer term, resource constraints are a major consideration, but some necessary reforms are resource-neutral. Legal and policy reforms, particularly the enforcement of legal limits on remand detention, ending imprisonment for offenses such as adultery, and abolishing the practice of imprisonment for non-payment of debt, will have an immediate and significant impact on reducing the number of prisoners arbitrarily detained. A zero-tolerance policy on corporal punishment and the chaining of inmates for extended periods of time, a degrading and inhuman treatment, will ease the suffering of many prisoners.
The government, with the support of South Sudan’s development partners, should urgently introduce other reforms, such as guaranteeing the right to legal aid, providing proper care for people with mental disabilities outside of prison, and ensuring that rule of law actors are sufficiently trained. Though costly, these changes are crucial components of a criminal justice system that upholds, rather than violates, fundamental human rights.