By: Wol D. Akech
July 25, 2017 (SSNA) — In part 1 of this piece of writing, I discussed the nature and background of the state of emergency decree declared by H. E. President Salva Kiir. The proceeding part also narrated the instances in which SoE can be declared, this was narrated with the help of consultation to the Transitional Constitution of the Republic of South Sudan,2011(amended, 2015), African ACHPR, 1981 and ICCPR, 1966. In today’s part (part 2), I will discuss the rights likely to be derogated under a state of emergency and impact, that such derogations may rise on National Dialogue.
WHICH RIGHTS ARE DEOGABLE UNDER SOE AND WHAT IMPACS WILL THESE DEROGATIONS RISE AGAINST NATIONAL DIALOGUE?
The following rights as provided in part two (2) of the Constitution among others shall be discussed to illustrate the impacts that their derogation may cause on National Dialogue in case the SoE is approved by the National Legislature.
- FREEDOM OF EXPRESSION UNDER SoE
Article 24 of TCRSS, 2011 provides as:
1) Every citizen shall have the right to the freedom of expression, reception and dissemination of information, publication, and access to the press without prejudice to public order, safety or morals as prescribed by law.
(2) All levels of government shall guarantee the freedom of the press and other media as shall be regulated by law in a democratic society.
(3) All media shall abide by professional ethics.
As provided in the provision of this Article, no one would deny that the availability of this right contributes to the success of the National Dialogue process and whereas in the SoE, based on the Deputy Minimiser of Information, Broadcasting and Postal Services statement to the media and the experiences of most of the states of emergency in the other jurisdictions, it is likely that the freedom of expression derogable and the following scenarios shall prevail.
- Restriction of opinion writings or discussions or sharing of materials on social media;
- Access to information between the Diasporas and populaces at home will be restricted or stop;
- SoE empowers the government to enforce censorship and block communities radio stations;
- Government opponent and their supporters will be deprived of access to media houses.
In the SoE, all communications or speeches that shall not meet government sanctions shall be restricted if not criminalized. Since such derogation of speeches and enforcement of self-censorship endanger the possibility of dialoguing, then chances of national Dialogue’s success are very narrow. These restrictions will give legal power to the National Security Services to enforce limit access to information in the SoE affected States and as result makes the purpose of National Dialogue unachievable.
The reports on lives of media persons in South Sudan prove that the government has compromised on media professionals’ rights (violations) which include harassment and intimidation of journalists. Social media ( Facebook), became the only forum in which South Sudanese protest, express, disseminate their opinions. The users of social media in the SoE States shall be subject to harassment if blocking of mobile phones internet access is not going to be enforced. There have been regular arrests, harassment, enlisting and monitoring by National Security Services on those whom they accused to be capitalizing the differences between President Kiir and former Chief of Staff Gen. Paul Malong, this will give National Security Services more powers as well be arresting or intimidating those they suspected of capitalizing the differences. It is also a well-known position of the government that social media is being used by anti-peace elements to bedevil the government policies if any. This restriction will affect unpermitted communications between nationals, NGOs, INGOs and foreign governments as it will be seen by the government as a threat to national security. The anti-peace groups as claimed by SoE decree and senior Government officials is not defined by SoE decree nor is there any directive issued thereafter to clarify. Perhaps the government might have adapted this term to extend the meaning to peaceful protesters, civil society or political activists. This derogation will compromise with information (among the NGOs or INGOs or foreign governments) on human rights violations.
- Freedom of Assembly
Under Article 25 of TCRSS, 2011right to peaceful assembly or protest is guaranteed to every person to participate in such peaceful assembly or protest, join other in forming the association. Article 25(1) states that “the right to peaceful assembly is recognized and guaranteed; every person shall have the right to freedom of association with others, including the right to form or join political parties, associations, and trade or professional unions for the protection of his or her interests”.
.In the situations of SoE, any assembly or protest without permission from the concerned authorities is prohibited if any or criminalized. The right to protest is not an offense under the laws of South Sudan but the government has never permitted any single protest. Permission for peaceful protest is highly restricted under the Criminal Procedure Act, 2008 (see Part VII) which has never been granted except when it is a government sponsored peaceful protest. One clear such example is the May 8th, 2017 when the Civil rights activists took to the street in Juba and the peaceful demonstration was dispersed and numbers of participants were arrested after having being denied permission that they had sought from the authorities with no justification. So the question, what impact will derogation of this right caused alongside SoE and National Dialogue remain to be negative that will sully the National Dialogue.
- Arbitrary detention and lack of due process
In some situations, experience shows that whoever does not abide by SoE order and directives to be issued thereafter can be arrested without regards to the due process of law. In most cases, people are detained or tortured in closed places till the lapse of the approved duration for the state of emergency or murdered without remedies. According to UN Committee on Human Rights General Comment No. 29, the prohibitions against taking of hostages, abductions or unacknowledged detention are not subject to derogation (Human Rights Committee, General Comment No. 29, paragraph 13(b)). Based on the reports on Human Rights stated early it is reasonable to believe that the government will intensify arbitrary arrest and due process will be disregarded on grounds of derogated rights.
In paragraph 16 of the United Nations Human Rights Committee General Comment No. 29, the Committee observed that the “principles of legality and the rule of law require that fundamental requirements of fair trial must be respected during a state of emergency. Only a court of law may try and convict a person for a criminal offense. The presumption of innocence must be respected. In order to protect non-derogable rights, the right to take proceedings before a court to enable the court to decide without delay on the lawfulness of detention, must not be diminished by a State party’s decision to derogate from the Covenant.”
Until recently with the commencement of National Dialogue with number of pressures, some people who have been in closed detentions were released without charges or told the reasons of their long detentions but in event the SoE is approved by the National Legislature, arbitrarily arrested, detention and probably murdering are likely to take place in the name of exercising the power of government under derogated rights.
- Freedom of movement
As per the claimed grounds of the SoE, it is likely that individuals’ freedom of movement from one State to another will be infringed and free movements will be all criminalized except by authorization by concerned authorities. This, of course, amounts to a violation of Article 27(1) where it is stated that “every citizen shall have the right to freedom of movement and the liberty to choose his or her residence except for reasons of public health and safety as shall be regulated by law”. Derogation or restriction of freedom of movement must be justified with accordance to the provision of Article 4(1) of ICCPR, 1966 otherwise the provisions of the ACHPR, 1981 must be observed by the South Sudanese Government. It will be a hindrance on the movement of the refugees who might be fleeing or returning (see Article 27(2) of TRCSS, 2011) unless further directives are issued to provide otherwise. Furthermore, it will restrict the movement of the National Dialogue Committee members and the participants of the dialogue not forgetting the humanitarian situations which need a free access of all aid workers both nationals and foreign nationals.
It is clear from the above discussion that there are descriptions of circumstances and power under which the State of Emergency may be declared. Rules of strict proportionality, only to the extent strictly required by the exigencies of the situation as stated in the UN Human Rights Committee Comment No. 29 must be observed by the Government. The declaration of a state of emergency per the above discussion does not meet the condition or nature in which SoE can be declared. The inter-communal fights in Gogrial State which extended to Tonj State could have been suppressed by the law enforcement agencies but no such measures being taken whether by the state or national governments. There are no attempts to quell the communal fights in the state whether by arresting the leaders of each fighting groups. Governor of Gogrial State whose government has failed to ensure the law and order should have been removed. Aweil East State or even Wau, on the other hand, does/do not fall under elements of Article 189(1) of TCRSS, 2011 to be placed under a state of emergency. It is true that the derogation of rights will affect the National Dialogue process, thus, the opinions of those who say that it is not National Dialogue but National Monologue is justified. Owing to the same article (189(1)), the power of the President to declare SoE can be legally interpreted to have overboard what Constitution permitted in regards to Aweil East State. Emergency provisions confer a great discretionary power upon the President and it is possible to be abused with flip-floppers we have in our National Legislature. As it is in my discussion above, the declaration of SoE is made on absurd or perverse, mala fide, extraneous and irrelevant grounds and it should be treated as such by disapproving it in the National Legislature or be challenged before the Court of law. Thus, the state of emergency decree in my opinion even if the President has not intended it as an attempt to rescind or sully the national dialogue its exercise or implementation alone may repudiate the National Dialogue and the National Legislature as Peoples’ representative should block the SoE for its exercise(implementation) with impacts on National Dialogue treated it as being declared on mala fide reasons.
Wol Deng Akech holds a Bachelor of Laws (LL. B) from University of Juba, Advocate and Legal consultant, currently pursues Master of Laws (LL.M), University of Lucknow, India. Co-founder, Screen of Rights, a National Non-governmental Human Rights Organization, Secretary General, Board of Trustees, Integrated Development Organization(IDO). He currently lives in Lucknow, India. He can be reached firstname.lastname@example.org or email@example.com.