The travel restrictions imposed on the released SPLM members after a court effectively dismissed their case are unconstitutional, says the former Minister of Justice John Luk Jok, who himself was detained earlier this year.

“Legally speaking, there is no criminal case surviving against the four gentlemen. They are free citizens enjoying all their guaranteed rights under the transitional constitution of South Sudan,” he wrote in a statement on behalf of the nine detainees who were cleared of treason accusations.

Last Friday the court released former SPLM-Secretary General, Pagan Amum Okiech, former army chief of staff Oyai Deng Ajak, former deputy minister of defense Dr. Majak d’Agoot Atem and former Ambassador to the US Ezekiel Lol Gatkuoth.

However, President Salva Kiir told media last Friday that the court can still call them back at any time for trial if he so desires. The former justice minister denies the government has the right to start such a case based on the same accusation: “That statement can only be described as unfortunate as it is a blatant violation of the due process of law and offends the legal principle that no person shall be tried twice for the same offence on the same facts.”

The statement adds: “What have the four done just immediately after regaining their freedom to justify depriving them of one of the fundamental rights guaranteed by the constitution? What about the spirit of reconciliation and the objective of peace that the President emphasized in his statement to the country? Will he expect people to take it seriously in view of these unconstitutional actions?"

Full text statement by John Luk Jok, 28 April 2014: 

Call On President Kiir To Allow Travel Of 4 Released

"...we call upon President Salva Kiir Mayardit to reconsider his statement regarding the rights of the four as guaranteed by the Constitution and instruct the security agencies to let the four to travel without hindrance."

The trial of the four South Sudanese detained political leaders namely, SPLM Secretary General, Mr.  Pagan Amum Okiech, Gen. Oyai Deng Ajak, Dr. Majak d’Agoot Atem and Amb. Ezekiel Lol Gatkuoth, accused of involvement in an alleged attempted military coup, was terminated on 25th April 2014, and the four were set at liberty by the court. The Minister of Justice of South Sudan, after evaluating the testimonies of the witnesses produced by the prosecution, found that there was no sufficient evidence against the four suspects and, therefore, decided to use his powers under section 25 (1) of the Code of Criminal Procedure Act, 2008 (CCP Act) to stay the proceedings. Under this section of the law, the Minister of Justice has power to stay any criminal proceedings against an accused on reasonable grounds.

Under the law, the power of the Minister is only exercisable after an investigation is completed and at any stage of the inquiry before the trial court delivers its finding or verdict on the case. The decision of the Minister was announced on Thursday, 24^th April, 2014, and was officially transmitted to the Court as required under sub-section (2) of section 25 cited above. The President of South Sudan who sanctioned the prosecution of the case was also aware about the decision of the Minister who is the Prosecuting Authority of the Republic of South Sudan.

The Court after receiving the written request of the Minister convened an emergency session on Friday, 25^th April 2014, in order to inform the four suspects of the decision of the Minister to stay the criminal proceedings against them and which in effect meant the withdrawal of the case. As a result, the four were discharged and set at liberty by the court and the case finally closed.  

Section 46(1) of the CCP, Act, 2008 stipulates that a criminal case shall lapse, and shall therefore not be subject to prosecution, for any of the following reasons:

(a)  The matter is resolved by means of the death of the accused, or upon compounding of the criminal case;

(b)  Passing a final judgment therein of acquittal or conviction;

(c)  Decision by the Public Prosecution Attorney refusing to frame the charge, or the dismissal of the criminal case; or

(d)  A decision by the Minister staying the criminal proceedings.

The above, are the instances under which a criminal case can lapse under the law. Therefore, based on the provisions of sub-section (d) above, the case against the four (4) suspects have lapsed as a result of the Minister’s decision to stay the criminal proceedings against them. Furthermore, the law clarifies the legal consequences of criminal proceedings that have lapsed in sub-section 46(2) which makes it abundantly clear in the following words:

“Where a criminal case lapses, for any one of the reasons mentioned in sub-section (1) above, no other criminal case based upon the same facts shall be initiated, except in case of non-framing of charges or dismissal of the criminal case”. The exception concerns decisions of Public Attorneys under sub-section 1 (c) above.

It may also be pointed out that from the evidence presented in the open Court in support of the prosecution’s case it was evident that the prosecution did not make out any case that would have warranted the conviction of the four suspects. Certainly this must be the main reason that prompted the Minister of Justice to stay the criminal proceedings, though belatedly. It can therefore be said that anyway, the Court was going to dismiss the case in exercise of its powers under section 226 (1) and (2) of the CCP Act, 2008.

Statement of the President

The President, when announcing the release of the four (4) suspects, stated that they were released as a gesture of peace and reconciliation. This statement has been welcome as reflecting a reconciliatory spirit despite the undisputed legal realities of the decision. However, the same President further went on to say that “the Court can still call them back at any time for trial if he so desires”. That statement can only be described as unfortunate as it is a blatant violation of the due process of law and offends the legal principle that no person shall be tried twice for the same offence on the same facts. Legally speaking, there is no criminal case surviving against the four gentlemen. They are free citizens enjoying all their guaranteed rights under the transitional Constitution of South Sudan 2011.

President also stated in his speech that the four shall not be allowed to leave the country and indeed two of them were stopped at Juba International Airport from leaving the country by the National Security officers who also confiscated their passports. The officers said they were carrying out instructions from “above”. By “Above” they mean the President. This is certainly in line with the public statement of the President. The question then is: why should the President confine and deprive them of their right to freedom of movement that is guaranteed by the Constitution?  Article 27 (2) of the Transitional Constitution 2011, states that: Every citizen shall have the right to leave and or return to South Sudan.  What have the four done just immediately after regaining their freedom to justify depriving them of one of the fundamental rights guaranteed by the constitution? What about the spirit of reconciliation and the objective of peace that the President emphasized in his statement to the country? Will he expect people to take it seriously in view of these unconstitutional actions?

It would appear that the purpose of pre-empting the verdict of the Court, which was expected to be acquittal, by withdrawing the case was to subject the four to another ordeal of arbitrary arrest and confinement contrary to the rule of law and due process which the Government had made us believe it was committed to, as justification for insisting to institute criminal proceedings against the four.

Conclusion

In order to uphold the rule of law and promote peace and reconciliation and respect of the fundamental rights of the citizens, we call upon President Salva Kiir Mayardit to reconsider his statement regarding the rights of the four as guaranteed by the Constitution and instruct the security agencies to let the four to travel without hindrance.

John Luk Jok,

Spokesperson,

SPLM Leaders (Former Detainees),

Addis Ababa, April 27, 2014