II. South Sudan’s Obligations under International and Domestic Law
“South Sudan is founded on justice, equality, respect for human dignity and advancement of human rights and fundamental freedoms.”
–Transitional Constitution of the Republic of South Sudan, 2011[55]
In his independence-day speech on July 9, 2011, President Salva Kiir pledged that South Sudan would abide by international conventions and seek accessions as soon as possible.[56] Although at this writing, South Sudan has yet to ratify or deposit instruments of succession to any major international or regional human rights treaties,[57] international law favors the automatic continuation of human rights obligations from predecessor to successor states.[58] South Sudan therefore inherited from Sudan a responsibility to respect, protect and fulfill rights guaranteed under the International Covenant on Civil and Political Rights (ICCPR),[59] the Convention on the Rights of the Child (CRC),[60] the International Covenant on Economic, Social and Cultural Rights (ICESCR),[61] the Convention on the Rights of Persons with Disabilities (CRPD),[62] and the African Charter on Human and Peoples’ Rights (African Charter).[63] Given the difficulties of the post-conflict context described in the previous section of this report, compliance with these obligations will require continuous effort to ensure that government institutions have necessary training, personnel, resources, and knowledge of the rights of citizens. Through the Transitional Constitution, which entered into force the day South Sudan gained independence, government officials confirmed their commitment to rise to this challenge.
Due to the continuing nature of human rights obligations, from the pre-secession through post-independence periods, people in South Sudan have maintained the right to be to be free from arbitrary detention.[64] South Sudan must provide for the protection of basic rights to due process. Defendants facing criminal charges must be granted a fair hearing by a “competent, independent and impartial tribunal.”[65] They must have adequate time and facilities to prepare their defense,[66] and be granted free legal assistance when they cannot afford counsel.[67] Trials must occur without undue delay,[68] and those who are found guilty must be granted the right to have their convictions reviewed by a higher tribunal.[69]
By virtue of its human rights obligations, South Sudan must also ensure that the treatment and conditions of those deprived of their liberty meet certain standards. Prisoners retain their human rights and fundamental freedoms; there should be no restrictions on their rights nor should they be subjected to any hardship or constraint, other than what is unavoidable as a result of their imprisonment.[70] Article 10 of the ICCPR requires that “[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”[71] The African Charter on Human and Peoples’ Rights also protects every individual’s human dignity and prohibits all forms of degradation, including torture, and cruel, inhuman or degrading punishment and treatment.[72] Under international law, the prohibition on torture is without exception or derogation.[73]
Numerous international instruments provide further guidance on the protection and respect of human rights of criminal defendants and persons deprived of their liberty. The most comprehensive are the UN Standard Minimum Rules for the Treatment of Prisoners.[74] Other relevant instruments include the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment and the Basic Principles for the Treatment of Prisoners.[75] The UN Rules for the Protection of Juveniles Deprived of their Liberty and the UN Standard Minimum Rules for the Administration of Juvenile Justice lay out additional specifications of the conditions under which children may be detained.[76]
At the regional level, the African Commission on Human and Peoples’ Rights has adopted instruments containing recommendations to improve protections of those encountering African criminal justice systems. It addressed due process rights in the 1992 Resolution on the Right to Recourse Procedure and Fair Trial[77] and the 2003 Principles and Guidelines on the Rights to a Fair Trial and Legal Assistance in Africa.[78] The 1996 Kampala Declaration on Prison Conditions[79] and the 2002 Ouagadougou Declaration and Plan of Action on Accelerating Prison and Penal Reform in Africa[80] both target the dire conditions common in many prisons in Africa.
Under domestic law, the Transitional Constitution, the Code of Criminal Procedure, the Child Act, and the Prisons Service Act all provide due process protections. The bill of rights in the Transitional Constitution protects the rights to life and to dignity, to liberty and security of the person;prohibits torture and forced labor;and contains special provisions on the rights of women, children, persons with special needs, and the elderly.[81] It also provides for equality before the law and enumerates requirements for fair trials, which are also elaborated in the Code of Criminal Procedure.[82] The Child Act guarantees protections for children in conflict with the law in line with international standards, and prohibits the imprisonment of children under the age of 16.[83] The Prisons Service Act lists the rights of prisoners, including to adequate food, water and sanitation. The standing orders of the Prison Service outline operating procedures for South Sudan’s prisons.[84] They are inspired by and incorporate most provisions of the UN Standard Minimum Rules for the Treatment of Prisoners.
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South Sudan should strengthen its human rights framework by formally acknowledging that it continues to be bound by treaties ratified by Sudan. It should also accede to other human rights treaties that would assure those in its territory additional human rights protections related to criminal justice and detention conditions. These include the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the Convention on the Elimination of all forms of Discrimination against Women (CEDAW), the Protocol to the African Charter on the Rights of Women in Africa (Maputo Protocol), and the African Charter on the Rights and Welfare of the Child (ACRWC).
[55] Transitional Constitution of the Republic of South Sudan, 2011, Part I, art. 1(5).
[56] President Salva Kiir independence-day speech, July 9, 2011, http://www.gurtong.net/ECM/Editorial/tabid/124/ctl/ArticleView/mid/519/articleId/5440/President-Kiirs-Independence-Speech-In-Full.aspx (accessed February 19, 2012).
[57] The exception is the Mine Ban Treaty to which South Sudan deposited notification of succession on November 11, 2011. Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Antipersonnel Mines and on their Destruction, adopted 18 September 1997, entered into force March 1, 1999.
[58] The 1978 Vienna Convention on Succession of States in Respect of Treaties, representative of the current status of international law, provides for the continuity of obligations in respect of all treaties that were binding on a predecessor state. Vienna Convention on Succession of States in Respect of Treaties, adopted August 22, 1978, 1946 U.N.T.S. 3, entered into force November 6 1996, art. 35. The UN Commission on Human Rights and UN Treaty bodies have also underlined the continuing nature of human rights treaty obligations on successor states. UN Commission on Human Rights, “Succession of States in respect of international human rights treaties,” Resolutions 1993/223, 1994/16 and 1995/18; UN Human Rights Committee, General Comment 26, Continuity of obligations (Sixty-first session, 1997), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. CCPR/C/21/Rev.1/Add.8/Rev.1 (1997), p. 173.
[59] International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A.Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S.171, entered into force March 23, 1976, ratified by Sudan on March 18, 1986.
[60] Convention on the Rights of the Child (CRC), adopted November 20, 1989, G.A. Res. 44/25,annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force September 2, 1990, ratified by Sudan on August 3, 1990.
[61] International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted December16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force January 3, 1976, ratified by Sudan on March 18, 1986.
[62]Convention on the Rights of Persons with Disabilities (CRPD), adopted December 13, 2006, G.A. Res. 61/106, Annex I, U.N. GAOR, 61st Sess., Supp. (No. 49) at 65, U.N. Doc. A/61/49 (2006), entered into force May 3, 2008, ratified by Sudan on April 24, 2009.
[63] African [Banjul] Charter on Human and Peoples' Rights, adopted June 27, 1981, OAU Doc.CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force October 21, 1986, ratified by Sudan on February 18, 1986.
[64] ICCPR, art.6; African Charter, art. 6.
[65] ICCPR, art.14(1); African Charter, art.7(1).
[66] ICCPR, art.14 (2)(b); African Charter, art.7(c).
[67] ICCPR, art.14 (3)(d); African Charter, art.7(c).
[68] ICCPR, art.14 (3)(c); African Charter, art.7(d).
[69] ICCPR, art.14(5).
[70] United Nations (UN) Human Rights Committee, General Comment 21, Article 10, Humane Treatment of Persons Deprived of Liberty (Forty-fourth session, 1992), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.7 (1994), para. 3.
[71] ICCPR, art. 10.
[72] African Charter, art. 5; In its 2002 Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (The Robben Island Guidelines), the Commission established concrete measures states should take to implement the prohibition of torture. African Commission on Human and Peoples’ Rights, Robben Island Guidelines, 2002, http://www.achpr.org/english/declarations/declaration_robbenislands_en.html (accessed March 3, 2012).
[73] ICCPR, art. 7.
[74] United Nations (UN) Standard Minimum Rules for the Treatment of Prisoners (Standard Minimum Rules), adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolution 663 C (XXIV) of July 31, 1957, and 2076 (LXII) of May 13, 1977.
[75] Body of Principles for the Protection of All Persons under Any Form of Detention of Imprisonment (Body of Principles), adopted December 9, 1988, G.A. Res. 43/173, annex, 43 U.N. GAOR Supp. (No. 49) at 298, U.N. Doc. A/43/49 (1988); Basic Principles for the Treatment of Prisoners.
[76] United Nations (UN) Rules for the Protection of Juveniles Deprived of their Liberty, adopted December 14, 1990, G.A. Res. 45/113,annex, 45 U.N. GAOR Supp. (No. 49A) at 205, U.N. Doc. A/45/49 (1990); United Nations (UN) Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”), adopted November 29, 2985, G.A. Res. 40/33, annex, 40 U.N. GAOR Supp. (No. 53) at 207, U.N. Doc. A/40/53 (1985).
[77] African Commission on Human and Peoples’ Rights, “Resolution on the Right Recourse and Fair Trial,” ACHPR/Res.4(XI)92 (1992), http://www.achpr.org/english/resolutions/resolution09_en.html (accessed February 1, 2012).
[78] African Commission on Human and Peoples’ Rights, “Principles and Guidelines on the Rights to a Fair Trial and Legal Assistance in Africa,” http://www.iag-agi.org/bdf/docs/fair_trial_and_legal_assistance_in_africa.pdf (accessed February 1, 2012).
[79] The Kampala Declaration on Prison Conditions in Africa arose out of an international seminar on prison conditions in Africa held in September 1996 in Kampala, attended by members of the African Commission on Human and Peoples’ Rights, Ministers of State, prison commissioners, judges, international, regional and national NGOs and Inter-Governmental Organizations (IGOs). The Declaration was subsequently annexed to a resolution by the United Nations Economic and Social Council. “Kampala Declaration on Prison Conditions,” annexed to Economic and Social Council (ECOSOC), “International cooperation for the improvement of prison conditions,” Resolution 1997/36, http://www.un.org/documents/ecosoc/res/1997/eres1997-36.htm (accessed February 1, 2012)
[80] African Commission on Human and Peoples’ Rights, “Ouagadougou Declaration and Plan of Action on Accelerating Prison and Penal Reform in Africa (2002),” http://www.achpr.org/english/declarations/declaration_ouagadougou_en.html (accessed February 1, 2012)
[81] Transitional Constitution, arts.16, 17, 30.
[82] Transitional Constitution, arts. 14, 19; Code of Criminal Procedure, 2008, art. 6.
[83] Child Act, 2008, chapter X.
[84] Standing Orders, South Sudan Prisons Service, June 2009. The Prisons Service is currently drafting a set of regulations.