February 12, 2009

IX. Abusive Practices in the Administration of Justice

Weaknesses in Southern Sudan's justice sector have given rise to various human rights violations in the administration of justice. Key areas of concern include, but are not limited to, interference of military authorities in the civilian justice system, arbitrary arrests and detentions by police, and poor conditions of detention.[122]

Military Arrests and Detentions

Under international law, military authorities should not assert criminal jurisdiction over civilians except in special circumstances, specified by law.[123] Under Southern Sudan's laws, primary authority for law enforcement lies with civilian police, with limited authority for armed forces. [124] The Southern Sudanese constitution says the armed forces have no mandate for internal law and order, except as requested by civilian authorities when necessity requires.[125]

Despite the legal proscription, military authorities continue to interfere in the administration of civilian justice by arresting civilians and detaining them in military facilities. Arrests by soldiers are more common in areas where the relationship between soldiers and the community has been troubled. In Nimule, a town on the border of Uganda and Central Equatoria, for example, local communities objecting to the presence of large numbers of predominantly Dinka soldiers and settlers from Jonglei have reported numerous cases of human rights violations by the soldiers, including arbitrary arrest and detentions.

In one example, Joseph Modi Lado Vuni, a trader from the Madi ethnic group, reported to Human Rights Watch that a soldier arrested, beat, and detained him for nine days in April 2008 after he tried to intervene in a dispute between the soldier and his brother over the price of a welding job. The dispute escalated until he was surrounded by soldiers holding guns.[126]

"They told me I was under arrest and started beating me all the way to the barracks. On reaching the barracks he ordered the soldiers to give me 100 lashes and put me jail."  Vuni alleges he was beaten severely in the following days, and only after friends and family intervened in his case was he released to police, who, he claims, did not detain him because his arrest was without legal basis and because they were afraid of being "stormed" by the army.

The head of the Southern Sudanese Human Rights Commission (SSHRC) has called the problem of illegal military detentions "common" and has spent considerable energy to "convince the SPLA that the law says you cannot detain people."[127] In its first annual report, the SSHRC found that soldiers had arrested the majority of the detainees the Commission visited in six civilian detention facilities in 2007, often on orders from the relevant State Governor.[128]

Both the UNMIS Human Rights Unit and the GoSS Human Rights Commission have reported soldiers have detained civilians in military barracks, including in secret detention facilities. In some locations parallel structures, relics of wartime structures, still rival civilian authority.[129] In 2007, a High Court judge in Eastern Equatoria discovered that nine prisoners in Kapoeta were held in military custody in shipping cargo containers in unacceptable conditions, rather than in Torit County prison.[130] 

Police Arrests and Detentions

The Southern Sudan Legislative Assembly adopted new criminal laws in 2008, but police in many locations have yet to receive copies or instruction, and continue to operate on the basis of the earlier 2003 laws passed by the SPLA and the 1991 criminal procedure act passed in Khartoum. Many police are not versed in the criminal law or in their roles and responsibilities. The Police Act is still pending in the assembly (as is legislation governing the fire brigade, wildlife, and prison services).

Illegal arrests and detentions occur throughout Sudan in similar patterns, reflecting practices often rooted in custom.[131] In Southern Sudan a formal judicial system has been largely absent, and customary law, recognized in the constitution as a source of law, is especially pronounced.[132] Most southerners in rural areas turn to traditional authorities for justice, rather than to the less accessible statutory courts located in main towns.

The SSPS, like the Sudan police force in the rest of the country, engage in the practice of arresting friends or family of suspects when suspects are not available. "Justice by proxy" reflects notions of collective responsibility.[133] In an example from Torit, police arrested a man for a murder committed by his brother at the request of the victim's family to pressure the suspect's family to pay compensation, or blood money known in Sudan by the Arabic term diya.[134]

In Rumbek, a random visit by Human Rights Watch to the police station revealed a 40 year old woman detained instead of her son, who was accused of stealing clothes, and a 22 year old woman detained instead of her cousin, who had borrowed money and disappeared.[135] In another Rumbek case, the wives of two suspects were held instead of their husbands (who had absconded) for two weeks without charge and stated that they had been beaten while in custody.[136]

Detention for debt is also widespread in Sudan, often justified by the concept of "protective custody".[137] In an example from Yei, prisoners were held after completion of their sentences because they had not paid compensation, and the county judge ordered them to stay in detention supposedly for their protection against the families of their victims.[138] UNMIS human rights monitors have also documented the trend of police or judicial authorities detaining females in protective custody when they are victims of domestic violence, rather than prosecuting the abusive husband.[139]

Across Southern Sudan, many prisoners serve time for morality offences involving extramarital sex because they could not afford to pay compensation.[140] UNMIS officials estimate that of the prisons and detention centres it monitors, nearly half the detainees are held for crimes committed by others as a way of pressuring families to reconcile or pay.[141] These forms of detention are not based on law and violate national and international protections against arbitrary detection.[142]

In many cases, individuals are detained at the request of family, traditional authorities, soldiers, or even politicians. For example, in March 2008 a group of soldiers beat a trader with a stone to make him divulge the whereabouts of a motorcycle driver whom they said collided with their vehicle. The soldiers then ordered police to arrest him and detain him for several days and the police complied.[143] In some instances, government authorities have ordered SPLA to conduct illegal detentions without seeking police or judicial involvement at all.[144]

In the absence of any mental health services, authorities also detain mentally ill people, often at the request of relatives, in violation of the law. The head of the Southern Sudanese Commission for Human Rights told Human Rights Watch that mentally ill detainees are often held in shackles, without treatment or judicial review of their detention. [145]

Authorities sometimes detain children at the behest of their parents, disregarding the age threshold for legal criminal responsibility under Sudanese law. According to one paramount chief in the Azande community of Western Equatoria, "If the parents ask, the chiefs will order the children to [suffer] lashings or prison sentences."[146] The GoSS has enacted a Child Act and UNICEF and other agencies are training authorities in juvenile justice.

Discrimination Against Women and Girls

Family matters are governed by customary laws, usually applied by traditional authorities. Customary traditions of most of Southern Sudan's ethnic groups limit the choices available to women and girls, particularly in respect of marriage, and are inherently discriminatory.[147] Judicial and traditional authorities acknowledge the need for harmonizing customary law with Sudan's laws and constitutions, and ultimately with international standards. However, the task of harmonization invites difficult decisions including whether to codify oral customary law traditions. As of December 2008, the process had barely started.

Many cases of illegal arrest and detention of females stem from application of these customary laws, especially as they relate to dowry (or bride price) payments. In some cases, human rights monitors reported that police or traditional courts arrest and detain women and girls for refusing to marry someone that the family has chosen for her or for running away from the husband after dowry has been arranged or paid.[148]

Police also arrest and detain women on adultery charges without a legal basis. The criminal law defines adultery as a crime by a married woman, but authorities do arrest unmarried women and girls for adultery.[149]  Authorities apply the charge more frequently to females than to males. Human rights activists in Yei reported that a large percentage of women in detention there were detained on charges of adultery quite often at the behest of a jealous husband.[150] In Rumbek, UN police monitors reported that females are most commonly arrested and detained for either adultery or elopement, a charge police apply for pre-marital sexual relations although the charge does not appear in the statutory criminal codes. 

In recent months, police have also arrested and punished women and girls for wearing clothes they considered too tight or inappropriate, although this is not a crime under the criminal code. In 2007 and 2008, police conducted large campaigns-sometimes violently-arresting women for wearing trousers or skirts in Malakal, Yei, and Juba.[151] In January 2009, the Commissioner's Office in Kapoeta, Eastern Equatoria, issued a similar decree, prohibiting "tight trousers and tight blouses with the navel exposed" among other offences and imposing a fine or jail time for violators. [152]

Poor Conditions of Detention

Prison conditions are extremely poor across Southern Sudan, with many facilities lacking the most basic infrastructure.  After visits to prisons in Lakes, Warrap and Eastern Equatoria the Southern Sudanese Human Rights Commission reported publicly on the poor sanitation, lack of ventilation, lack of beds, the failure to separate children from adults, and lack of medical care and food.[153] The Human Rights and Humanitarian Affairs Committee of the Southern Sudan Legislative Assembly reported very poor conditions in Malakal prison, particularly for mothers detained with their babies.[154]

Some detainees alleged to the committee members serious ill-treatment including torture in retaliation for using the bathroom or seeking fresh air.[155]Detainees also reported inmate-on-inmate violence. One former detainee in Juba prison told Human Rights Watch he was beaten by other prisoners while police looked on. "We were about 30 people in a very small cell. There is no place to sleep there. The other prisoners beat me, they beat the new ones . [156]

Another man who was urinating blood and had visible signs of beating said he had been kicked in the groin and stomach by a fellow prisoner.[157] One doctor told Human Rights Watch that he regularly sees cases of injured detainees who are brought to the clinic by the police. The most common injuries are "broken bones, bruises, lacerations, beating with a stick."[158]

In this context, the problem of prolonged pre-trial detention is even more urgent. In many cases reported by UNMIS human rights monitors, detainees were held for prolonged periods without legal assistance or judicial review of their cases. In a case from Bor prison in Jonglei state, UNMIS monitors encountered a former SPLA soldier accused of murder who has not had access to a judge for two years.[159]

In northern Bahr el Ghazal and Wau, 11 detainees were held from two to four years without arrest warrants and never appeared in court or received any legal assistance.[160] In Torit, detainees were kept in police cells for 23 days without charges brought against them.[161] Since January 2007 there have been three prison riots resulting from frustration over lengthy detention periods on remand.[162]

Lack of Oversight of Detentions by Judicial Institutions

Several actors in the criminal justice sector, including members of the Southern Sudan Human Rights Commission, are entitled to inspect prisons under the current legal framework. However, only judicial actors have the authority to order the release of illegally detained prisoners. There are insufficient judicial and prosecutorial personnel deployed to the regions to ensure the legality of continued detentions.[163] 

Judicial authorities have addressed the problem of illegal detentions in the past. In Lakes State, Special Courts comprised of traditional authorities and statutory court judges reviewed pre-trial detention cases in 2007-8. In February 2008 one court ordered the release of 45 detainees from Rumbek Central Prison after finding the charges without merit.[164] If conducted properly and by qualified individuals, such reviews could help alleviate crowding in the prisons and ensure the legality of detentions.

[122] United Nations Office of the High Commissioner for Human Rights (OHCHR), "Arbitrary arrest and detention committed by national security, military and police," Tenth periodic report of the United Nations High Commissioner for Human Rights on the situation of human rights in the Sudan, November 28, 2008, provides a far more thorough discussion of these problems.

[123] See UN Human Rights Committee, General Comment no. 32, The rights of minorities, UN Doc CCPR/C/21/Rev.1/Add.5 (1994) para 22.

[124] The criminal laws give soldiers some authority to make arrests in the context of keeping public order. Criminal Procedure Act, 2008, Sections 163-5. The new SPLA Act, passed in January 2009, also gives soldiers a role in internal security but does not specify what that entails.

[125] Interim Constitution of Southern Sudan, Article 154(5)

[126] Human Rights Watch interview with Joseph Modi Lado Vuni, Juba, December 23, 2008.

[127] Human Rights Watch interview with head of Southern Sudan Human Rights Commission, Joy Kwaje, Juba, March 18, 2008.

[128] Southern Sudan Human Rights Commission (SSHRC), First Annual Report, July 2006-December 2007, p. 21.

[129] United Nations Office of the High Commissioner for Human Rights (OHCHR), "Arbitrary arrest and detention committed by national security, military and police," Tenth period report of the United Nations High Commissioner for Human Rights on the situation of human rights in the Sudan, November 28, 2008, p.24-25

[130] Isaac Vuni, "Four murderers escape from Police Custody in S.Sudan's Torit," Sudan Tribune,February 3, 2007, http://www.sudantribune.com/spip.php?article20084 (accessed February 3, 2009).

[131] See "Tenth Periodic Report".

[132] Interim Constitution of Southern Sudan, 2005, http://www.gurtong.org/constitution.asp (accessed February 5, 2009)

[133] "Tenth periodic report," p. 27-8; SSHRC, First Annual report, p.21.

[134] UNMIS internal report, December 2007, on file with Human Rights Watch.

[135] Human Rights Watch interview with police officers (names withheld), Rumbek, December 18, 2008.

[136] Human Rights Watch interview with international humanitarian organization staff (names withheld), Rumbek, December 18, 2008.

[137] Protective custody is not recognized as a valid reason for detention under Sudanese law, the ICCPR, or the ACHPR.

[138] UN confidential report, December 2007, on file with Human Rights Watch

[139] "Tenth periodic report," p.33.

[140] "Tenth periodic report," p.30.

[141] Human Rights Watch interview with UNMIS Corrections staff, Juba, July 5, 2008.

[142] See 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, Article 9 and 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,  Art. 6 for governing trial and detention standards.

[143] Human Rights Watch interview with Ugandan trader (name withheld), Juba, March 27, 2008.

[144] "Tenth periodic report" details executive interference in the administration of justice. P.39

[145] Human Rights Watch interview with head of Southern Sudan Human Rights Commission, Joy Kwaje, March 18, 2008.

[146] Human Rights Watch interview with Wilson Hassan, Yambio, December 6, 2008.

[147]Under the system of "bride wealth," the groom's family pays cattle for the bride so the bride's family has an interest in marrying her to the highest bidder. Since the bride's family must repay it if the couple divorces, women and girls are pressured to stay in their marriages, regardless of abuses they may suffer. In some traditions, the age of marriage is as low as 14.

[148] "Tenth Periodic Report," p.30.

[149] UNMIS report December 2007, on file with Human Rights Watch; see also, Human Rights Watch, "The Impact of the Comprehensive Peace Agreement and the New Government of National Unity on Southern Sudan," March 2006, http://www.hrw.org/legacy/backgrounder/africa/sudan0306/index.htm.

[150] Human Rights Watch interview with member of Southern Sudan Law Society, Juba, July 4, 2008.

[151]  Correspondence with international humanitarian organization staff (names withheld) in Yei, July 27, 2008; see also Gurtong news, "Trouser-wearing women worsening harassment and Kenya Sudan border," August 22, 2008, http://www.gurtong.org/ResourceCenter/weeklyupdates/wu_contents.asp?wkupdt_id=2326 (accessed October 2, 2008); "Sudan: Fashion Police Make Arrests," Reuters, October 7, 2008, http://www.nytimes.com/2008/10/08/world/africa/08briefs-FASHIONPOLIC_BRF.html?ref=world (accessed October 8, 2008).

[152] Commissioner's Office, Kapoeta South County, Eastern Equatoria State, County Decree No.1-JAN-2009, January 19, 2009, on file with Human Rights Watch.

[153] Southern Sudan Human Rights Commission, First Annual Report, July 2006-December 2007.

[154] Southern Sudan Legislative Assembly Human Rights and Humanitarian Affairs Committee, Report on situation in Upper Nile, Sept 11-23, 2008, on file with Human Rights Watch, pp. 11-23.

[155] Ibid, p. 22

[156] Human Rights Watch interview with Ugandan trader (name withheld), Juba, March 27, 2008.

[157] Human Rights Watch interview with medical doctor (name withheld), Unity State, March 20, 2008.

[158] Ibid.

[159] UNMIS HR bulletin, November 08, 2008, on file with Human Rights Watch

[160] UNMIS confidential document, December 2007, on file with Human Rights Watch.

[161] UNMIS/South Sudan Peace Commission/UNOCHA/Sudan Council of Churches, "Brief Notes on the outstanding tribal differences in Sector 1 (Cases of Central and Eastern Equatoria States)," 2007, on file with Human Rights Watch

[162] "Report of the Special Rapporteur on the situation of human rights in the Sudan, Sima Simar," Human Rights Council, A/HRC/9/13, September 2, 2008, para. 71, http://daccessdds.un.org/doc/UNDOC/GEN/G08/159/95/PDF/G0815995.pdf?OpenElement (accessed October 6, 2008).

[163] "Tenth period report", pp.37-8

[164] UNMIS Human Rights bulletin, April 10, 2008, on file with Human Rights Watch.