Shortage of Judges Slows Justice Process in South Sudan

 

By Dedi Esbon Samuel.

On the evening of August 5, 2008, Kenneth Kaunda, a 29-year resident of Yambio Town in Western Equatoria, made a discovery that would irrevocably change his life. While walking home from work, he came across the lifeless body of a young man lying by the roadside.

Shocked and horrified, Kaunda reported the incident to the police. Seventeen days later, his nightmare began. Arrested and wrongfully accused of murder, Kaunda was convicted and sentenced to 14 years in jail. Kaunda, 43, reflected on his ordeal, recounting the harrowing experience of spending a year in Yambio police custody without trial before facing an unjust legal proceeding. 

“I was locked in the Yambio police cell and stayed for one year. Then in 2009, I was arraigned in Court. In June of the same year (2009), the court passed the ruling and I was charged with 14 years.” 

Upon the Court’s ruling, the former convict made an appeal, but unfortunately he was transferred to Juba National prison where he served his sentence. 

“I made an appeal before I was transferred to Juba National prison. This appeal was to prove that I was innocent and wanted justice. Even as I was brought to Juba, I was still following my appeal. However, the appeal took so long that I had to serve all my prison term. But I’m glad that when the result came, I was acquainted and was surely found innocent” He said. 

According to Kaunda, his case was delayed because it went through investigations and there was no judge at the time to handle the case. 

Kaunda’s Life after jail. 

Kaunda’s saddest moment is that, when he came out of prison, he lost all his properties, and the wife left as he was no longer able to provide for the family.

According to him, this has caused sorry and agony, finding all that he cherished so much was gone, impugning the judiciary system and inadequate integer of judges that were unable to pass his appeal case on time.

While in prison, he (Kaunda) noticed that the huge challenge facing the judiciary system in South Sudan is the lack of judges which according to him is due to underfunding and payment of the lawyers. 

Currently, the former convict works at construction sites as a mason surviving on a daily basis. 

South Sudan’s Transitional Constitution 2011, as amended on Bill of Rights, ARTICLE 19, SUB-SESSION 4 

States that, “Any person arrested by the police as part of an investigation, may be held in detention, for a period not exceeding 24 hours and if not released on bond to be produced in court. The court has authority to either remand the accused in prison or to release him or her on bail” however, the case is different in South Sudan where remands are kept at the Country’s national prison more than required.  

The transitional Constitution also stated that every accused person shall be entitled to be tried in his or her presence in any criminal trial without undue delay; the law shall regulate trial in absentia. 

However, inadequate judges have contributed to delay in cases like that of Kaunda where he was forced to serve 14 years because the appeal couldn’t come on time. 

Lieutenant-General Atok Atem Baroc, the director of Juba National prison confirmed that there is delay in handling cases mainly because of limited number of judges, revealing that Juba National prison which was originally built to accommodate 400 to 500 inmates, currently houses close to three thousand inmates with majority being remand prisoners awaiting trial. 

“Juba prison was built in the 1940s, actually to accommodate 400 to 500 inmates. Now, it is currently accommodating almost 3000. In the prison today, the number of both convicted and remand prisoners is two thousand six hundred and forty-nine (2,683. So), which is over congested”

According to Baroc, the number of convicted prisoners at Juba National prison is 985, while those awaiting trial are 1,698. 

 

The prison director confirmed saying “We have two classes of the prisoners, the convicts and the remands. So, the remands are more than convicts. Those who are under trial, those who are under investigations are more than those who have been convicted into imprisonment. So, about three quarters of these inmates are actually the remand prisoners”

According to director Baroc, by law remand prisoners are supposed to be kept in police cells for 24 hours, however, once transferred to the main Juba prison, there is a possibility that they stay for seven days after which they are presented in court. But still with the absence of judges’, remand prisoners end up spending months.  

“I think you are supposed to stay for 24 hours in the police station. But when you are remanded to prison, you have to serve 7 days. Your warrant has to be renewed for another 7 days. And if you are still under investigation, you have to be taken to court for the court to remand you for one month. And it cannot exceed three renewal warrants. So, here the problem actually is that the judges are very few” he said. 

The Director asserted that other investigations take long thus forcing inmates to stay longer than required by the law. According to him, currently remand prisoners are more than 1000. 

The Director said the prison administration would have resorted to sending prisoners to production camps. However, it’s hard to send remand prisoners to work since most of their cases are still being investigated. 

“So, the issue now is the remand prisoners. You cannot even send them to any police because their courts are here and the complainants are here. They have to wait until they are convicted. Otherwise, we cannot send them to any police” 

Atem appealed for more medical support especially to the big number of those awaiting trial saying according to law, the prison administration is not to care for the remands. However, he also appealed to the government to consider building a bigger prison in the capital Juba. 

National and International reactions. 

Many local and international human rights experts have severally attributed the issue of case backlogs and increasing number of remand prisoners in Juba National prison to inadequate number of judges and low funding.

The UN Human Rights Commissioners for South Sudan in their 2024 visit to Juba, raised concerns saying South Sudan lacks a judiciary independent system to address potential issues, particularly with elections slated for December this year (2024). 

Carlos Castresana, a UN human rights commissioner and prosecutor, said the world’s youngest nation lacks a judiciary presence in most parts of the country including Jonglei the largest state in the country. 

He stated, “Without it, you will undoubtedly see an increase in violence and corruption. Unfortunately, the reality in South Sudan is that its judiciary is not functioning.”

Castresana pointed out that, “The judiciary is severely under-resourced, lacking the necessary funds and personnel for territorial distribution, impartiality, and independence. In many parts of the country, it lacks an effective presence.”

During a visit earlier this year to Jonglei, the biggest state in South Sudan, Castresana highlighted a concerning situation, saying, “No High Court judge is in place, making the prosecution of rape and murder nearly impossible in regular courts.

“The persistence of widespread sexual and gender-based violence, including abductions, is directly linked to the absence of rule of law institutions capable of addressing these crimes,” Castresana added.

“The government, in spite of this reality, we need to check that they have available resources. It is not a problem of lack of resources. 

To fund the development of the judiciary, courts receive a very tiny fraction of the national budget”

Furthermore, Castresana revealed that state revenues are diverted by elites to address the persistent human rights violation, stressing that Justice institutions must be properly established and funded with the resources, with the personnel and deployed throughout the country. 

Omara Joseph wani, a lawyer and human rights activist from South Sudan Human Rights Network (SSHRN) confirmed that many remand prisoners are still being kept in many prison facilities across the Country. 

“I have to say that our judicial system is a bit broken down. The reasons are really enormous. But, categorically, what I can say is that we have a good number of people that are still in prison and incarcerated in different facilities across the country. And they have never been brought a single day for any hearing or in a court of law.” 

The human rights lawyer said dysfunctional judiciary system in South Sudan has resulted in people being arrested arbitrarily detained beyond the period required by the country’s transitional constitution.  

“Sometimes if a suspect is arrested and may be detained in the police custody, if the relatives or the closest allies of the person do not go to rescue or to find out where the suspect was taken, it is obvious that that person may not get freedom either,” he stressed.

According to Omara most people whose justice is delayed, include those who are arrested in different parts of the Country, and transferred to Juba National prison; thus, without follow up by relatives, these people stand the possibility of staying for months without being brought to court of law. 

“If there is no way to file a case, and then definitely even if the crime that person committed only is supposed to serve the sentence of one month, that person may even go up to five years. So we have people who have been detained in prison, they have never seen the court facility because they have never been brought.”

According to the SSHRN, other reasons for failure of cases in court is the lack of follow-up, noting that most people are falsely accused and thrown to prison with no case opened in their name. 

“If there is no person who can follow a file, it means that case, that person may not be produced to court easily. So our judicial system is in a way that is always very hard. Because if you look at the nature of our crimes committed here, we have different institutions. We have the police that are supposed to be a law enforcement agency and they are supposed to be the anti-detector of this”

“Once the person is arrested, within 24 hours, according to Section 64 of the Criminal Procedure Act, in the Transitional Constitution of South Sudan 2008, amendment Act 2012, they are supposed to investigate this person within 24 hours. Then thereafter, if they find evidence, they should be able to produce this person in court”

Wani noted that this section of the Constitution has not been practiced. 

Reacting to the issues raised, Dr. John Gatwech Lul, South Sudan’s Deputy Chief Justice, admitted that since the country inherited the judiciary system from Sudan, it has not been able to appoint more judges because majority of the population that was in the bush during the liberation war could not afford education; hence it has affected the judiciary system.  

The deputy Chief Justice attributed the scarcity of Judges to the limited level of education South Sudanese received. According to him, during the 21 years of the liberation struggle South Sudanese were not able to get the opportunity of education. 

This in turn has contributed to the limited number of Judges, he however said it has not been possible to appoint more judges because of limited resources as the country is struggling economically.

“This country came to be an independent country in 2011. By that time, we didn’t have enough judges because people were at the court and there were no schools in the bush. A few of us who had the training somewhere in the world, Sudan or in a nearby country, some of them came and became the judges” he narrated. 

The deputy Chief justice said other challenges hindering the judiciary leadership from appointing new judges is inaccessibility of most states, especially those that have been hit hard by floods such as Jonglei, Unity and some parts of Upper Nile respectively. 

“There are no enough judges. That is true. But we cannot do this within that short time. But we are preparing to appoint more than 100 judges” Lul told InfoNile in an exclusive interview.  

He stated that, in locations where there are no judges, the judiciary uses mobile courts to handle cases especially in Jonglei and other states across the country. 

“There are places which are not accessible because of [the] lack of roads and other things. Therefore, we have solved this problem by having what we call mobile courts. These mobile courts are courts where we appoint judges. And we coordinate this work with the Minister of Justice. So that we have legal counsels together with judges”

Currently South Sudan has 40 Judges across the country, Chief Justice Chan Reec Madut, revealed during training of states high election commissions chairpersons that his institution has so far engaged in training judges in preparations for the December elections. 

“As the judiciary, we have also started training judges on election disputes. We have done this in collaboration with a German organization called Max Planck foundation. All the judges, except 20, but we are going to train these other 20 so that they know in all the sessions they will be there” Madut said 

According to him, these judges will be responsible in handling elections related cases that may arise. 

“If there are any disputes relating to elections, they will be there. We will bear this in mind, it is our responsibility. Our personal interest is not there at all.

In the end, it is God who is going to judge us. This is a big responsibility on your neck. Like we did during the referendum, which you became independent.”

Judiciary Budget

About the budget allocation to the judiciary, the leadership declined to disclose the resource envelope saying the judiciary budget is confidential. According to him, the budget is compiled by the judiciary service council, a body that handles the issues of funding, then forwarded directly to the president for assent. 

However, South Sudan’s fiscal year budget for 2023/24, indicated that the judiciary was allocated 3.7 Billion South Sudanese pounds. 

 

This story has been produced in partnership with InfoNile and Target Media.