I. Criminal Justice in the New Nation

“[We] are only at the beginning of the long, winding and challenging road of development.”

–President Salva Kiir, Washington, DC, December 2011[1]

When South Sudan declared independence from Sudan on July 9, 2011, it joined the ranks of the world’s least-developed nations.[2] Only 27 percent of adults are literate,[3] and less than half of primary school age children are in school.[4] An estimated 80 percent of South Sudan’s population of 8.26 million live without access to any toilet facility, and 38 percent have to make a one hour round-trip by foot to fetch drinking water.[5] The maternal mortality rate of 2,054 per 100,000 live births is the highest in the world.[6]

Such chronic underdevelopment is the result of the Sudanese government’s political and economic marginalization of Sudan’s southern territories, combined with decades of brutal civil war. With this legacy, since the signing of the Comprehensive Peace Agreement (CPA) in 2005 that brought an end to Sudan’s civil war,[7] the then semi-autonomous regional government of Southern Sudan, now the Republic of South Sudan, has confronted massive challenges in all sectors of governance.

Over the past seven years, the government in Juba has worked to develop a functioning criminal justice system, and it has made significant progress in establishing Southern Sudanese police, prisons service, and courts, constructing necessary infrastructure, and passing new legislation. These efforts are ongoing. However, for a number of reasons, including a shortage of skilled and highly trained civil servants and inadequate resources, there are persistent weaknesses in all rule of law institutions. 

Weaknesses in the Police Service

The Southern Sudan Police Service was formed in 2005 under the Ministry of Interior. The Police Service Act, which dates only to 2009, defines as its duties to “prevent, combat and investigate crime,” to “maintain law and public order,” to “protect the people…and their properties,” and to “uphold and enforce” the Constitution.[8] Yet it is largely unable to provide these services because it lacks sufficient resources and trained personnel. One senior judge described police as the “weakest link” in the criminal justice system.[9]

South Sudan’s history of war and secession is directly reflected in the composition of the Police Service. Prior to the CPA, there were two different systems of civilian government in South Sudan. In territories held by the national government, including the towns of Juba, Wau, and Malakal, the national police and courts were operating according to the laws of Sudan. At the same time, in areas held by the SPLM/A, there was an SPLM/A civilian police force and a judiciary that relied on laws developed by the SPLM/A.  In 2005, the Police Service brought together both former Government of Sudan police as well as former SPLA police.[10]

The security arrangements agreed upon under the CPA provided for the disarmament, demobilization, and reintegration (DDR) of former combatants as well as for the dissolution of all armed groups other than the Sudan Armed Forces (SAF) and the SPLA.[11] As a result, following the CPA, thousands of former SPLA combatants and members of numerous militia groups were transferred to both the police and prisons services.  In addition, since South Sudan gained independence, the Police Service has received over 4,000 police of Southern Sudanese origin who had continued to serve in the North. There are currently a total of approximately 55,000 police personnel.[12]

The Police Service operates under significant constraints. In 2011, 95 percent of the Police Service’s budget was spent on salaries, leaving little funds for infrastructure and equipment.[13]  Police stations and holding cells are generally derelict structures –sometimes simply thatched mud huts called tukuls, metal containers, or trees to which detainees are chained. Police detainees are not provided with food. Many rely on relatives to bring them meals or on the generosity of other inmates, while others spend days on end without eating. Police officers lack important supplies such as paper and official forms. Insufficient transportation and communication equipment also significantly hamper their ability to carry out responsibilities such as completing investigations or taking detainees to court.

Largely as a result of the high numbers of former combatants, the Police Service faces significant training and capacity challenges. Many of its members are still learning to interact with civilians in a manner appropriate for civilian police.  An estimated 90 percent of police personnel are illiterate in both Arabic and English, making it difficult for them to carry out basic policing functions such as writing crime reports or managing cases.[14] Many have received little or no training, and therefore lack knowledge of law enforcement, human rights, or fundamental legal texts.[15] In addition, police are concentrated in the capitals of South Sudan’s 10 states, with few officers present in the vast and sometimes difficult to access rural areas, where 83 percent of South Sudanese reside.[16] As a result of these challenges, police may fail to establish the foundation for fair trials – proper arrests, legal police detention, and thorough investigations –because they are not present, lack sufficient resources or know-how.

Since 2005, there have been efforts by the government, with donor support, to build the capacity of the Police Service through training programs. A police-training complex outside of Juba opened in 2009, and includes a police college, police academy, and a basic training school. There are also smaller training centers in each of the 10 states.[17] UNMISS Police (UNPOL) has conducted training and also has personnel co-located in police stations to provide on-the-job mentoring. Some police have also travelled for training programs in Kenya or Uganda.[18] Despite these important initiatives, the Police Service continues to lack well-trained personnel, as not all police staff have benefitted from these programs, and those who have may still need additional training.[19]

While facing significant internal challenges, the Police Service is saddled with the task of preventing crime and ensuring security in a context of growing criminal activity, constant instability, and where there is a proliferation of small arms among civilians. Urban areas have seen a rise in criminal activity, such as armed robbery and murder.[20] Clashes between the military and rebel militia groups and inter-communal violence have resulted in large-scale population displacement and thousands of civilian deaths.[21] According to the UN Office for the Coordination of Humanitarian Affairs, in 2011 over 3,400 people died in conflict incidents.[22]

While many shortcomings can be traced to the fact that the Police Service operates in a challenging context and is under-equipped, under-staffed, and under-trained, there are also cases of physical abuse, in clear violation of basic human rights standards.[23]  No fewer than 17 inmates in five different states told Human Rights Watch they were beaten or tortured in police custody before being transferred to prison. According to a medical officer at Juba prison, prisoners sometimes arrive, “with bruises all over their bodies. When we ask them what has happened, they tell us that they were tortured by the police.”[24] A 15-year-old who had spent two months in police custody, said that on multiple occasions, police tied him in a bag, kicked and beat him with sticks and guns, then cut his feet with razor-blades while ordering him to confess to murder.[25] In one widely publicized case, police officers in Juba tortured and inserted stones and glass bottles into the vagina of a woman accused of theft, causing a miscarriage and damage to her uterus.[26] Such abuses compromise the integrity of the entire criminal justice process.

Complexities of a Plural Legal System

In addition to challenges related to human and material resources, South Sudan’s judicial system confronts the complexities of a plural legal structure, which includes both statutory and customary courts and draws on multiple sources of law. The basis for criminal punishment is an amalgam of British-introduced common law embodied in statutes and the generally unwritten customs of over 50 indigenous ethnic groups.[27] There is also evidence that Islamic law continues to have subtle influences on judicial practices. This mixture of traditions blends adversarial and punitive theories of justice with consensual and restorative ones. The strategy for developing, rationalizing, and structuring the legal system is the subject of ongoing internal debate.[28] This report highlights some key areas where existing structures, processes, and criminal punishments run afoul of international human rights standards.

The Statutory System

The Judiciary Act of 2008 sets out the statutory system. The Supreme Court in Juba is the highest court in South Sudan, followed by three regional Courts of Appeal. There is a High Court in each of the 10 states, which has original jurisdiction over all homicide cases and also hears appeals from lower courts. According to the Judiciary Act, there should also be statutory courts in every county and payam.[29] In reality, however, due in part to staff shortages, the absence of court infrastructure in rural areas, and insecurity in some parts of the country, there are statutory courts in only some of South Sudan’s 79 counties, and none at the payam level.[30]

Whereas a fully staffed judiciary would count more than 250 judges, there are currently only 125 across the country.[31] With judges and prosecutors clustered primarily in main towns, it is difficult and sometimes impossible for rural litigants to file complaints or appeals.[32] Instead, most people rely on customary courts and do not appeal their decisions to the statutory courts.[33] The most common impact of staff shortages is extended periods of pre-trial detention, described in detail in Section III.

When the CPA set up the semi-autonomous government of Southern Sudan in 2005 and granted it powers to legislate,[34] the then regional assembly began passing a new body of laws. The Penal Code and Criminal Procedure Code were passed in 2008. Despite various donor-funded trainings for personnel in the judiciary and Ministry of Justice,[35] many judges and prosecutors still lack sufficient knowledge of these laws. Human Rights Watch saw many prisoner files that cited the 2003 penal code developed by the SPLM/A or the 1991 penal code passed in Khartoum, even though convictions took place long after 2008.[36] Many judges and prosecutors did their legal training in Arabic in a Sudanese university and are not fully literate in English, South Sudan’s official language and the only language in which laws are published. Sections III and IV of this report highlight areas where laws are misunderstood, cases of misapplication, and a general failure of judges and prosecutors to ensure that criminal processes take place in accordance with domestic law.

The Customary System

Traditional chiefs preside over customary courts, deciding cases according to the “customs, traditions, norms and ethics” of their respective communities.[37] Proceedings generally take place under large trees and are open to the public. The Local Government Act of 2009 establishes a hierarchy of customary courts at the county, payam, and boma levels,though the reality on the ground rarely conforms to this neat structure.[38] The criminal jurisdiction and sentencing power of customary courts are unclear, and as a result these courts hear all kinds of cases, and there is no apparent government effort to rein them in.[39] Chiefs are not part of the official state judiciary, but their decisions are enforced by state law enforcement. While decisions from county level customary courts can be appealed to statutory courts,[40] in practice, most people are not aware of such avenues or how to go about exercising their right to appeal.

The government of South Sudan is committed to maintaining a place for customary law in its developing legal system. Customary law is seen as an element of South Sudanese cultural identity that the SPLM/A fought to defend and preserve, and a necessary component of a judicial system that reflects the values and needs of South Sudanese.[41] The status of customary law is explicitly protected by the 2011 Transitional Constitution, as a source of law, as a right of ethnic communities, and as justiciable by both traditional chiefs and the statutory courts.[42]

During the long civil war between Sudan government forces and the SPLM/A, responsibility for the administration of justice was for the most part left in the hands of traditional chiefs.[43] While the formal judiciary has become more active since the CPA was signed in 2005, with the establishment of more courts and additional judges, some estimate that customary courts handle 80 to 90 percent of both civil and criminal cases.[44] They play a critical role in meeting demands for dispute resolution, as they are generally more accessible, particularly to rural litigants. Their procedures are less cumbersome and more familiar to most South Sudanese.[45] In contrast to statutory courts, they hear cases quickly, with a hearing and judgment sometimes taking place within a single day.

Customary law is described as embracing reconciliation and community harmony as principle tenets and is therefore seen by foreign observers and South Sudanese alike as having the ability to promote and maintain community cohesion. Rulings intend to restore that which has been lost or damaged, through compensation awards, often measured in the form of cows or other livestock. Historically, prison sentences were not among the sanctions imposed by customary courts. Murder, for example, is sanctioned under the customary law of many groups through a payment referred to as blood compensation to the family of the deceased.[46]

Customary law, however, is evolving, and traditional chiefs now draw on elements of state justice, commonly imposing punitive penalties involving prison sentences, and citing provisions of the Penal Code. Their procedures and rulings raise serious human rights concerns relating to the lack of due process protections, particularly when they result in deprivations of liberty. Such concerns are discussed in sections III and IV of this report.

Bringing South Sudanese customary justice systems in line with international human rights standards is a complex endeavor, as customary law is deeply intertwined with local cultural, social and economic systems.[47] Yet however complicated reform may be, defendants facing criminal charges have the same rights to due process and to a fair trial, both in customary and statutory courts.

Prisons: The End Point

As prisons are the final stage in the criminal justice system, the weaknesses of the police and due process failures in the courts are evident in the testimonies of prison inmates and the composition of the prison population. Due in part to increasing activity of police and courts, prison populations are rising sharply. The South Sudan Prisons Service estimates there were only approximately 1,500 prisoners in 2005, while there are now approximately 6,000. In Juba prison, the population has increased five-fold, from under 200 in 2005 to close to 1,000.[48]

According to the Prisons Service, as of November 2, 2011, there were a total of 5,767 men, women and children in state and county prisons across the country.[49] Of this figure, 7 percent were female and 93 percent male; 30 percent were on remand, awaiting the completion of police investigations or trials. On the death row were 182 men and women. Ninety individuals were labeled as “lunatics,” because they were said to have showed evidence of mental disabilities. One hundred and sixty-eight children were accused or convicted of crimes, and 55 others were in prison accompanying their mothers, either because they are infants or because there is no one else to care for them.[50]

The Prisons Service does not compile data on the crimes of which inmates are accused or convicted. A 2008 survey in nine major prisons found that 38 percent of inmates were convicted or accused of murder, 35.7 percent for theft crimes, 10.9 percent for debt, and 8.7 percent for adultery.[51] Interviews by Human Rights Watch with prison administrators confirmed that these continue to be the most common reasons for imprisonment.

The limited staff competence, poor training and infrastructure, and paucity of funds compound the problems prisoners experience with the police and courts. As with the Police Service, the Prisons Service has incorporated a large number of demobilized SPLA soldiers and members of other armed groups. Many have received only three months of training in prison administration.[52]

Among prison staff, there is also a high level of illiteracy and insufficient knowledge of prison regulations, and as such prison files are often in disarray. The Prisons Service Act, art. 62 stipulates that every prisoner’s record should include information about his identity, the detention warrant, the offense for which he is accused or convicted, and the length of his sentence, yet files are generally not organized, and information may be missing or inaccurate. There are inmates for whom the Prisons Service is unable to produce a single written document justifying their detention or even confirming their name. For example, the prison administration at Bentiu was unable to provide Human Rights Watch with the files of approximately 30 of the 162 convicted prisoners. In Tonj, four out of nine prisoners interviewed had no files and in Aweil, two prisoners had no available files. As such, it at times becomes impossible to ascertain why a person is detained, whether the detention is legal, and how long that person will be in detention.

The Prisons Service is bloated due to massive incorporation of demobilized soldiers following the CPA. Incredibly, the number of prison staff, about 20,000, is more than three times the number of prisoners.[53] The Prisons Service used 93 percent of its 2011 budget to pay salaries, leaving little funds for improvements to infrastructure or to provide adequate food and medicine for those in detention.[54] There are 10 major state prisons and additional facilities in counties and payams, many of which are temporary structures. The prisons in Bor, Aweil, Wau, Yambio, Juba, Rumbek, and Malakal have benefited from renovations funded by international donors, but are overcrowded and still require health and sanitation services. Facilities in Tonj were built in the 1940s and have not been recently renovated, and those in Bentiu consist of traditional thatched tukuls and two rooms whose roofs and walls are constructed entirely of corrugated metal sheets.