I have been following debates on the legality of the political developments in and around Juba. The parameters asserted by various lawyers appear, to some extent, misconceived.
In an opinion dated March 13, 2025, published on Radio Tamazuj, one lawyer seemed to contend that the circumstances surrounding Dr. Riek Machar’s home amounted to false imprisonment. The learned author appeared to conflate law with politics, even though some legal principles may overlap with political considerations. The innocent and unsuspecting public may be misled by his conclusion that “surrounding Dr. Machar’s residence with forces met the criteria of false imprisonment.”
This conclusion, to me, is contradictory, considering both past and contemporary legal and political trajectories. Understanding this issue requires placing various legal principles, including but not limited to the definition of false imprisonment, into context.
What Does the Law Say?
The notion of false imprisonment in South Sudan’s legal system can be traced back to the Magna Carta of 1215, an early constitutional instrument in Europe that prohibited the deprivation of personal liberty in a manner not provided for by law. Common law courts have since addressed numerous cases of false imprisonment, including two notable cases: Bird v. Jones [1845] 7 QB 742 and Meering v. Grahame-White Aviation Co. Ltd (1920) 122 LT 44. In Bird v. Jones, Lord Denman CJ of the High Court of England and Wales stated:
“Every restraint of a man’s liberty under the custody of another, whether in a gaol, house, stocks, or in the street, is in law an imprisonment; and whenever it is done without proper authority, it is a false imprisonment, for which the law provides a remedy.”
False imprisonment is both a civil and criminal wrong and is actionable per se.
Upon gaining independence in 2011, South Sudan inherited several legal systems, including English law, whose features are present in various legislations, such as the South Sudan Penal Code Act of 2008. While the Penal Code Act does not explicitly provide for the offense of false imprisonment, Section 284 addresses wrongful confinement. It states that whoever confines a person in such a manner as to prevent them from proceeding beyond certain circumscribing limits commits the offense of wrongful confinement. However, it is unclear whether the lawyer’s conclusion on false imprisonment was made in the context of a crime or a tort.
From the 1845 English definition of false imprisonment, a key element is the absence of “proper authority.” This definition has remained consistent. The latest legal definition of “false imprisonment” in Black’s Law Dictionary (12th Edition) describes it as the restraint of a person in a bounded area without justification or consent. The key elements here are “without justification or consent.” Before concluding that surrounding Dr. Machar’s residence amounts to false imprisonment, it is imperative to address these key elements: the absence of proper authority or justification, and the lack of consent. I will elaborate on this below to put the matter to rest.
Authority
The contentious issue is whether the person who ordered the deployment of forces around Dr. Machar’s residence had proper authority or justification. In the current political hierarchy, Dr. Machar, as the First Vice-President, enjoys immunity and can only be deprived of his liberty upon orders from the President if the issue is political. Such authority falls within the constitutional powers of the President of the Republic. There is no dispute that the President has proper authority.
Article 1.5.1.1 of the Revitalized Agreement on the Resolution of the Conflict in South Sudan (R-ARCSS), 2018, stipulates that H.E. Salva Kiir Mayardit shall continue as the President of the Republic of South Sudan. Among other functions, the President has the power to preserve and protect the sovereignty and territorial integrity of the Republic of South Sudan (Article 1.6.2.1 of the R-ARCSS) and to perform any other function as prescribed by the Transitional Constitution of the Republic of South Sudan (TCRSS), 2011 (as amended), the Agreement, and the law (Article 1.6.2.20 of the R-ARCSS).
Article 101(a) of the Transitional Constitution of South Sudan, 2011 (as amended), mandates the President to preserve the security of South Sudan and protect its territorial integrity. Under the current legal system, the President, vested with the power to preserve South Sudan’s security, can order forces to surround any residence, even that of the First Vice President. Some lawyers might argue that such an action violates the R-ARCSS. However, surrounding Dr. Machar’s residence with forces, if ordered by the President in the interest of safety and security, falls within the constitutional powers entrusted to the President. There is no inconsistency in the exercise of such powers that would invoke the Supremacy Clause of the Agreement under Article 8.2 of the R-ARCSS. I would therefore contend that the President had proper authority, and as such, there is nothing illegal about the confinement.
Justification
Having proper justification implies that there must be a valid reason for a particular action. Was there justification for the deployment of forces around Dr. Machar’s residence? The answer could reasonably be yes.
Given the controversial nature of the revitalized agreement, it can be argued that following the Nasir incident, security around Dr. Machar’s home was necessary for his personal safety. Another justification could be preventive detention, aimed at restraining Dr. Machar from reverting to his military constituency, which could escalate tensions.
From the above analysis, there is no convincing evidence that surrounding Dr. Machar’s home amounts to false imprisonment in law. The lawyer’s opinion appears to be more political than legal. As to whether the courts can determine the legality of the situation, the political question doctrine may currently hinder such a determination. At this stage, the immediate solution lies not in the law but in the ability of the President and his First Deputy to agree that the country’s interests supersede their own. Two competing political interests should not overshadow the interests of the honorable citizens of South Sudan.
The author, Kumbogbia Benty, is a Barrister and a Master of Laws candidate at the University of Galway, Ireland. (kumbogiabenty@gmail.com)
The views expressed in ‘opinion’ articles published by Radio Tamazuj are solely those of the writer. The veracity of any claims made is the responsibility of the author, not Radio Tamazuj.